Kosovo, once
prominent on Western TV screens and on the front pages of newspapers, is about
to become independent. Whether independence, long dreamed of by most of its
Albanian inhabitants, helps them realize their aspirations depends on whether
their leaders can eliminate pervasive corruption.

Kosovo is legally a province of Serbia, but 90% of the population is
Albanian. Geographically, Kosovo is about one-tenth the size of Switzerland
and has a population of roughly two million. The Albanian population has resisted
what it sees as “occupation” by the Ottoman Empire,
then the Serbs, and then the United Nations, for hundreds of years. This
resistance, especially after Serbian strongman Slobodan Milosevic revoked
Kosovo’s political “autonomy” in 1989, manifests itself by reliance on extended
family networks and traditional customs. The modern insurgency, expressed
through the “ Kosovo Liberation Army (KLA),” waged one of the most successful
“Fourth Generation” guerilla wars of the Twentieth Century, proving that armed
resistance to the Milosevic-regime’s human rights abuses was necessary to
induce international intervention against Milosevic. The KLA necessarily was
financed illegally and procured arms illegally, according to Serbian law,
though not necessarily according to the law of other states. The organizers and
participants in the KLA are proud of their ability to operate “illegally”
during the conflict and are fiercely loyal to each other. The most effective
political leaders of Kosovo today are former commanders of the KLA, and they
mostly recruit former KLA sub-commanders and soldiers as their subordinates and
aides.

Despite this history, Kosovo is today a modern society, at
least in its cities. Street crime is almost non-existent. Kosovars are strongly
patriotic to their long-standing dream of having their own country. They love
Americans, who, they think, rescued them from Serb occupation through the NATO
intervention of 1999. Four elections have been held since the NATO
intervention, and were characterized as free and fair by all international
observers.

Sovereignty is shared between an elected Albanian national
government and a UN mission (“UNMIK”) which retains ultimate decisionmaking
power in the executive, legislative and judicial realms. Both the UN administration
and the elected local government have been largely ineffective and inattentive
to the major domestic problem of 60% unemployment. Each level of government
blames the other for inaction. Ordinary people cope through an extraordinary
combination of entrepreneurship and patriotism. Many of their economic
activities operate “under the radar screen” of formal government institutions.
The most charismatic and effective indigenous leader is Ramush Haradinaj,
former KLA commander, and Prime Minister until he was indicted by the
International Criminal Tribunal for the former Yugoslavia (“ICTY”). A recent
public opinion survey showed Haradinaj to be the second-most popular Kosovar,
after former KLA chief-of-staff Agim Çeku, the current Prime Minister. Çeku is
closely associated with Haradinaj, and, many observers believe, controlled by
him.

Even those who support independence for Kosovo worry about
the effect of corruption on its future. Smuggling with impunity, nepotism, and
bribes at all levels are believed to occur regularly. More recently, a source
of concern has been the unwillingness of Prime Minister Çeku to take action
against ministers he inherited from his predecessor who are widely perceived to
ineffective or corrupt or both, despite concrete charges against some of them.
Despite early promises that he would “clean house,” he has backed away from
that declaration and acceded to public statements by the heads of both of the
parties in his coalition government that the political parties, and not the Prime
Minister, will decide whether ministers should be retained.

A few critics of the government assert that the defense fund
for Haradinaj, organized to defend him against the war-crimes accusations, is a
cover for intensified corruption in public contracting. Most Kosovars, however,
both publicly and privately, vigorously defend the fund as necessary to make
sure that Haradinaj gets a fair trial of what are widely believed to be trumped
up charges, motivated by the politics of the Tribunal’s desire to seem
“even-handed,” by prosecuting Albanians as well as Serbs, Croats, and Bosniaks.
The defense fund has announced a goal of raising 12 million Euros. There is no
evidence that the defense fund receives money from illicit sources or spends it
for improper purposes. Michael O’Reilly, senior adviser to Haradinaj, and
leader of his defense team, informed the author that “I have already published
the first annual accounts for the fund at a time (April of this year) when we
had raised approximately E6.5m, I held a press conference to do so and that I
made available to journalists a full list of donors and the amounts that they
had gifted. Every cent of the fund is and will continue to be accounted for.”
Nevertheless, many continue to be unaware of the names of contributors or the
fund’s expenditures. The belief that the fund is insufficiently transparent,
whether accurate or not, fuels suspicion in a society that embraces conspiracy
theories. Haradinaj, attractive to the international community as a decisive
and effective leader—and one of the few who has sufficient credentials as a
fighter to tamp down public disappointment about the terms of independence—is
also impulsive and domineering. Most internationals and locals believe that the
international authorities block any serious investigation of Haradinaj’s
widely-rumored ties and supervision of cigarette, drug, and human trafficking
activities and of past political and witness-murders suspiciously linked to
Haradinaj’s interests. Some outside experts also believe that the
internationals blocked the arrest of the revered and recently deceased
president, Ibrihim Rugova, for corruption.

There is no publicly available evidence to support any of
these allegations or suspicions. The point is not to argue that the suspicions
are correct, but to acknowledge that they fuel political alienation and
undercut effective leadership.

The opposition political party, led by former KLA political
director Hashim Thaçi, launched a major anti-corruption campaign against the
Haradinaj/Çeku government about a year ago, making specific allegations against
several ministers. The opinion surveys show that approval of Thaçi and his
party has declined since he began the campaign. One reason may be that the
public views Thaçi’s party as equally corrupt and not particularly interested
in rooting out corruption when it was part of the previous coalition government
and controlled the Prime Ministership.

Ordinary citizens in Kosovo complain about corruption, but
their definitions of corruption are diffuse. Many of those who claim to have
experienced it say they are afraid to complain lest they be killed. The public
prosecution service and the judiciary are widely viewed as incompetent,
corrupt, and scared. A new anti-corruption agency has no office facilities, no
staff beyond the director, and no budget. Despite widespread complaints about
corruption, there have been no high-profile corruption prosecutions in seven
years of international administration.

As of late fall, 2006, the attention of internationals
involved in Kosovo and of the Kosovar political leadership naturally is focused
primarily on final status negotiations and the possibility of independence.
Most participants and observers believe that a measure of independence will be
the result, taking effect as early as mid-2007. Once Kosovo becomes
independent, attention must shift to building an effective independent state,
not only strengthening the democracy that already exists, but also
demonstrating the capacity of an independent, locally elected government to
solve domestic problems, particularly including stimulating economic growth and
creating jobs.

Eliminating or reducing the effects of public corruption is
an essential part of this undertaking. As long as public corruption is widely
perceived to be a significant reality, foreign investors will be reluctant to
invest in Kosovo, local businessmen will have an incentive to evade
responsibilities imposed by the law, and ordinary members of the public will
become further alienated from the democratic political process.

This report, prepared without outside financial sponsorship,
seeks to define the public corruption problem in Kosovo more precisely than
previous public reports have done, and to consider what “best practices” from
the United States and other developed democracies can be adapted to the
realities of Kosovo’s history and political situation. It offers concrete
recommendations for a major anti-corruption initiative to be undertaken after
independence.

The report draws upon Professor Perritt’s eight years of
close involvement in Kosovo. That involvement began during the conflict as the
KLA was gaining strength, and more recently has included more than 100
interviews and other research for his forthcoming book on the KLA. Under
Professor Perritt’s leadership, several students from Chicago-Kent and Illinois
Institute of Technology have worked in Kosovo and in Chicago on economic development, political
party development, and establishing the rule of law in Kosovo. Several of the students
have visited Kosovo and others have worked for several months or longer as
externs for Kosovo institutions.

Several outside institutions have collected data on
corruption in Kosovo. The United Nations Development Program (“UNDP”) conducted
a public opinion survey in April, 2004. The United States Agency for
International Development (“USAID”) conducted a survey in the summer of 2003.
The government of Serbia
claims that its intelligence services have monitored corruption in Kosovo
closely. Recent German press stories reported on German intelligence-service
concerns about corrupt ties of major Kosovar political figures. This section
reviews their findings, and concludes with some observations about the effect
of corruption—whether actual or merely perceived—on economic development,
political development, and on the capacity of the local government in Kosovo to
deliver good laws and public services.

The UNDP survey labeled Kosovo as an area of high corruption
possibility, due to its developing economy, transitional government, and young
institutions. Kosovars labeled low wages as the primary source of petty
corruption in the survey.

Ordinary Kosovars, however, expressed a low tolerance for
corruption in society. Most responded that corruption was the greatest evil in
their society. Yet, more respondents accepted corruption when it dealt with
receiving basic needs, such as jobs and healthcare services. Kosovars blame the
KEK (the electricity provider), hospitals, customs, the coalition government,
and the presidency for most corruption in society. Healthcare claims come from
actual experience while claims regarding the KEK and customs seem to be based
more on news stories than on experience. There is a high perception of
corruption in government institutions although no such evidence leads to this
conclusion. Most survey respondents did not report personal experience with
corrupt conduct by governmental officials but nevertheless perceive such
conduct to be widespread.

The survey shows differences of opinion about what
constitutes corruption.[3]
Although eighty percent of survey respondents identified bribes and other
illegal procedures as corrupt,[4]
fewer labeled preferences based on personal or family relationships as corrupt.

The younger generation in Kosovo is more optimistic about
fighting corruption than older generations.[5] In
order for progress to occur, the survey suggests that accountability must
increase, simplification of government processes must occur, and that
prevention, enforcement, complaint, and coordination procedures must be clearer
and more responsive. Thirty percent of Kosovars feel that the Assembly of
Kosovo should take the lead to fight corruption in Kosovo after the full
transfer of power from the UNMIK, by far the largest level of support for any
one institution to take the lead.[6]

A USAID survey in Kosovo was conducted over a four month
period from May through August 2003. Levels of political, institutional,
economic, and social stability were measured as well as inter-ethnic relations
and public and personal security.

The survey showed a general downward trend regarding public
opinion about the economy in Kosovo.[7]
Organized crime and corruption contributed to this pessimism. The public
perceived a moderately high to high level of organized crime in Kosovo,[8]
focused on trafficking of human beings, drug smuggling, and other economic and
violent crimes. Many Albanians felt that the business community was connected
to organized crime. Corruption as a whole in Kosovo was perceived as second in
importance behind unemployment, followed by low incomes, and high prices.[9]
Data compiled from surveys of Kosovo’s neighbors including Albania, Bosnia-Herzegovina,
Bulgaria, Macedonia, Romania,
Croatia, Serbia, and Montenegro show, however, that
Kosovo is at the low end of the corruption index, placing it in a better
position than its neighbors. It may be that corruption in Kosovo is perceived
by the public to be a greater problem than it actually is.

Corruption problems may intensify in Kosovo as a result of
more powers being transferred from UNMIK to the PISG (Provisional Institutions
of Self Government-the locally elected government). The report suggests that
corruption be fought at its roots, with a focus on the development of
fundamental judicial and legal institutions as a top priority. It also suggests
that the government in Kosovo must become more transparent in order to gain
trust from the public.

The government of Serbia, and interest groups
supporting its position in opposition to independence for Kosovo, consistently
claim that Kosovar Albanian society and the governmental institutions created
by it after the NATO intervention are pervasively corrupt and tied to organized
crime and to Islamic fundamentalist networks. They make specific allegations
against former KLA leaders, including Haradinaj, Thaçi, and Xhavit Haliti. The
Serb reports, including a “white book” apparently prepared by the Serb
Intelligence Service, allege that governmental institutions and public funds
are used by these political leaders to enrich themselves and their criminal
associates. It is also alleged that these former KLA leaders and other
political leaders in Kosovo control active criminal networks, especially in the
Drenica and Dukagjini regions of Kosovo. These networks, the Serbs say,
specialize in human trafficking, drug trafficking, and the arms trade,
involving not only Kosovo itself, but also operating as part of a European and
Middle Eastern network.[10]

An August, 2006, news story in the major German newspaper Berliner Zeitung cited German
intelligence-service reports as backing up some of these claims. The motive and
validity of the story are open to question, however, and its allegations have
not generally been repeated by other German press and media.

If the perceptions and allegations of corruption are even
partially true, corruption will cripple the effort to build a democratic and
prosperous society in the context of independence. The challenges for an
independent Kosovo would be daunting even if corruption were altogether absent.
The transformation of a political culture that has been focused for 100 years
or longer in criticizing the dominance of outside “occupiers” into one that can
forge effective political coalitions focused on delivering results is
incomplete. In the economic arena, Kosovo depends on expenditures by
internationals associated with the UN civil administration or with the many
NGOs now present in Kosovo for close to 50 percent of its GDP. A viable
economic program must include plausible steps to prevent a sharp depression as
these expenditures are reduced—as they surely will be after independence is
achieved. Even after privatization is completed, it is far from clear what
sectors of the economy offer comparative advantage to Kosovar producers of
goods and services. Considerable insight and experimentation will be necessary
to find Kosovo’s place in the regional and world economy.

When one adds corruption to this equation, the likelihood of
meeting these challenges is low. If local businessmen and outside investors
discover or perceive that substantial amounts of their capital must be diverted
to bribe public officials, the threshold for investing will increase significantly.
If tax revenues are diverted for the private advantage of public officials, the
relationship between the burden of taxes on economic activity and governmental
contributions to sound economic growth will be adverse. The capacity of public
institutions will be reduced if government positions are given to relatives or
political cronies without regard for performance or ability. To the extent that
a culture of corruption also infects law enforcement personnel, public
prosecutors, and the judiciary, rooting out corruption elsewhere will be more
difficult.

Politically, widespread corruption or the perception of
widespread corruption erodes trust in democracy and the rule of law. If an
ordinary Kosovar believes that government agencies and courts exist primarily
to obtain bribes and private advantages, he will avoid participating in
democracy and will evade the law.

Despite widespread reports of corruption in Kosovo since the
beginning of the UN civil administration of the territory, few high profile
corruption investigations have been pursued, let alone concluded successfully.
The reasons for this are not entirely clear. One distinct possibility is that
top UN officials, and the major powers working through the Contact Group and
the UN Security Council, have not been interested in attacking public
corruption aggressively because they fear it would destabilize the political
structure. A serious anti-corruption initiative could reduce the effectiveness
or actually remove from the scene the most effective and influential political
leaders.

Another possibility is that the political will to attack
corruption is absent in the Kosovar Albanian community, and without such
political will, foreign prosecutors and judges cannot be effective in any
anti-corruption campaign.

Another possibility is that the foreign investigators,
prosecutors, and judges introduced into Kosovo simply lack the expertise, work ethic,
and results orientation to mount an effective anti-corruption campaign.

Public corruption is not, of course, a problem unique to
Kosovo; it is a problem everywhere, including in the most developed,
democratic, and law abiding societies. In the United States, combating public
corruption has been an ongoing struggle throughout its history. The public
corruption problem in other societies has produced some useful theory and
practical experience that must form the foundation of any anti-corruption
initiative in Kosovo.

This section begins with a summary of relevant theoretical
observations and then offers a number of case studies including one from Italy
and several from the United States that support 10 “axioms” about best
practices in anti-corruption campaigns. It will be difficult to operate a
successful anti-corruption campaign in Kosovo without taking these axioms into
account.

Public corruption is a creature of history, custom and
self-interest. Three bodies of theory are helpful in structuring a framework
for understanding public corruption in Kosovo. The broadest is offered by
Robert Neild,[11] a
retired professor of economics and a fellow of TrinityCollege, Cambridge. A useful complement to Neild’s
observations is found in the work by U.S.
law professor Bernard Black focused on corporate corruption in Russia.
Both implicitly make use of “norm theory”—the study of the informal rules that
shape public perceptions of right and wrong.

Neild turns the usual analysis of public corruption on its
head, noting that corruption in government has been the norm in most societies
for the last several centuries. Accordingly, he suggests that the most useful
question is how, in exceptional cases, corrupt societies have been able to
become less corrupt. He emphasizes that the definition of corruption differs
among societies and has changed over time in each society.[12]
He defines public corruption as “the breaking by public persons, for the sake
of private financial or political gain, of the rules of conduct in public
affairs prevailing in a society in the period under consideration.”[13]

He then posits
that the amount of corruption in a society depends on the gap between (1) the
number of decisions to be made by public officials, which in turn depends upon
the intensity of government regulation and (2) the extent to which those
decisions are made dishonestly.[14]
He reinforces his conclusions by close historical studies of Britain, the United
States, Prussia/Germany, and France.

Neild emphasizes the necessity of political will to reduce
corruption. His conclusions in this regard are worth quoting:

“1. Changes in the quality of
government, i.e. rules and their enforcement, will take place only if rulers
introduce them.

“2. Politicians whose prime aim is
to gain office will not advocate reforms unless they believe that by doing so
they will improve, or at least not damage, their prospects of acquiring power.

“3. Once in power, rulers,
regardless of how they got there—whether by inheritance, force or election—and
regardless of what they promised in election campaigns, will not introduce
reforms unless they believe that by doing so they will improve, or at least not
damage, their chances of retaining or enhancing their power.”[15]

This presents the conundrum of why any pragmatic political
actor would ever embark on a serious anti-corruption campaign, whereby he would
disadvantage himself vis-à-vis his corrupt competitors.[16]
Neild explains how a kind of prisoners’ dilemma operates on political actors.
If B is corrupt, A risks losing power if A is not also corrupt. Only if A can
expose B’s corruption and publicly denounce him on those grounds is there is a
possibility of gain through an anti-corruption initiative. But the possibility
of such a gain is dependent on two factors: first the electorate must not be so
cynical as to be indifferent to B’s corruption; second, A must be able to
establish that he himself is not corrupt; otherwise B, accused of corruption by
A, can show that A is equally corrupt, thereby equalizing the damage to both in
public esteem.[17]
Therefore, political will at the top depends on the existence of a popular will
opposed to corruption and the ability of political actors to benefit from that
popular opposition.

Public scandals are important opportunities to reduce
corruption.[18] Neild’s
review of the British experience reveals that repeated scandals over decades
are necessary to overcome the resistance of beneficiaries of corruption to take
action to stop it.

National or ethnic solidarity is an important consideration.
It can be helpful in reducing corruption within a particular nation or group,
if corruption is antithetical to cooperation that enhances the welfare of the
group. On the other hand, it may further corruption when the group mobilizes to
resist what it sees as oppression by another group.[19]

Neild suggests that three social forces created the
circumstances under which political advantage historically could be gained by
mounting a serious anti-corruption campaign. Those forces were the
Enlightenment, Religion, and the Pursuit of Efficiency.[20]
According to Neild, the Enlightenment particularly, reinforced by the
Protestant Ethic, spawned political philosophies that emphasized enhancing the
public good rather than private gain.[21]

Efficiency frequently became a goal in the past in order to
improve the capacity to wage effective military campaigns—offensive or defensive.
More recently, efficiency has become a goal in order to ensure the delivery of
public services while mitigating the burden of taxation. Corruption is a dead
weight on governmental productivity, and reducing or eliminating it improves
efficiency.[22] The
efficiency variable is important if one adopts a Darwinian view of the
evolution of society. In this regard, social evolution favors societies which
can mobilize their resources for war and military domination better because
they are efficient and relatively uncorrupt. Prussia is a prime example.[23]

Neild also identifies two mediating factors: the evolution
of a professional, elite civil service, and governmental transparency.
Transparency cuts two ways, however: “it is helpful if the media and public is
critical of corruption and able to call effectively for reform; it is unhelpful
if it causes the behavior of a rotten ruler or rulers to be imitated by the
people of the country so that corruption and cynicism spreads.”[24]

He identifies the institutional apparatus necessary to
eliminate corruption: a well paid military, police and civil service selected
by merit; an independent judiciary; laws and economic regulations that inhibit
corruption, or at least do not induce it; good audit systems; and a press that
is uninhibited in exposing corruption.[25]

An independent, corruption-resistant judiciary is essential
for controlling and reducing public corruption.[26]Independence is necessary,
because without it any judicial instincts to expose and prosecute corruption are
stymied by pressure from corrupt political superiors.[27]
Neild explores the adequacy of judicial compensation and the development of
professional judicial norms as essential factors in reducing or eliminating
judicial corruption.[28]

International involvement usually increases corruption,
because of competition by major powers for natural resources, leading to
corrupt deals with the rulers of resource-rich countries in order to obtain
concessions. The growth of the post-Cold War arms trade also fuels corruption,
as arms suppliers bribe rulers in order to get orders.[29]
Neild extends this analysis to construction contracts.[30]

Moreover, the “internationalization of government” has
spread corruption because of temptations associated with the dissemination of
subsidies from the EU and UN-based international organizations.[31]
The tendency is reinforced by jockeying over positions in international
organizations.[32] Neild
admits, however, that growing international attention to the need to eliminate
corruption may prove to be helpful, especially due to public pressure from
organizations like Transparency International.[33]
Even as the international community announces opposition to corruption and
establishes standards for non-corrupt behavior, however, Neild finds it
difficult to identify incentives “that would cause corrupt rulers to say to
themselves ‘if I do not attack corruption I may be punished so severely that I
shall lose power, whereas if I attack it I shall be rewarded so generously that
may hold on power will be maintained or enhanced.’”[34]

Neild is pessimistic about the prospects for reducing public
corruption in Third World countries. For one
thing, military competition does not operate in the same way that it did for
Western European nations in the Eighteenth and Nineteenth Centuries.[35]

Two other factors influence the dynamics of corruption in
developing countries. First, the drug trade produces enormous revenues and can
operate only by corrupting officials. At the same time, “public corruption may
have beneficial effects by liberating enterprise from ill-judged government
regulations and can certainly be consistent with rapid economic growth: the
United States in the Nineteenth Century, Italy and a number of Asian countries
in the second half of the Twentieth Century are examples.”[36]
On the other hand, he observes that if it goes too far, public corruption can
cause economic collapse because it sucks away too many resources from the
government and makes commerce-enhancing law ineffective.[37]
“In those countries, principally in the Third World,
that have limited capacity for government and yet attempt to enforce complex
economic regulations, there is good reason to expect that corruption might be
reduced by cutting back on regulation ….”[38]

Stanford Professor Bernard Black has identified corruption
as the most important barrier to economic development in countries in
transition, focusing on his experience in Russia.[39]
He challenges the “old view” of corruption, which viewed it as not so bad,
serving as “useful grease for bureaucratic wheels.” “It was better for
businessmen to pay bribes and to get something done than to have bribes
forbidden and get nothing done, in the face of an uncooperative bureaucracy.”[40]
He lists 21 problems that pervasive corruption causes for economic development.
Among them is the tendency for corrupt bureaucrats to use regulations and
permission-requirements as flexible weapons to induce the payment of bribes,
acting as though they have discretionary authority when they do not, dreaming
up new rules and new interpretations to induce bribes.[41]
He notes that the damage is worse when permission requirements are sequential
rather than simultaneous. An entrepreneur has a stronger incentive to pay a
bribe in the later stages of a project because he already has invested so much
in bribes paid to obtain earlier-stage permission. He notes that the quality of
government declines as policymakers and corrupt bureaucrats skew governmental
decision to protect or enhance opportunities to obtain corrupt payments rather than
to provide good government service.[42]
Not only does the need to make corrupt payments divert capital from productive
use in enterprise development, but it also distracts managers from profit
generating activities, and usually protects monopolistic enterprises from
competition.[43]
Overall, the effect is to discourage investment and reinvestment.[44]

Though Black places anti-corruption initiatives at the top
of his list of reforms necessary for economic development, he is very general
in his suggestions for elements of a successful anti-corruption program. “This
must involve an attack on the preconditions for corruption, including underpaid
and poorly paid officials and judges; discretionary enforcement authority, the
aggregate license and permit burden, oppressive taxation, high tariff barriers
to competition, organized crime, and on and on and on, as well as a direct
attack on corrupt officials.”[45]
Despite their generality, however, Black’s recommendations do sketch some basic
directions for governmental policies that reduce corruption. It is particularly
important to restructure regulations to reduce the opportunities for bribe
seeking and payment, and actually to prosecute, convict and sentence corrupt
businessmen and governmental officials.

Political will to make such changes depends, as Neild
argues, on popular attitudes toward public corruption. Popular attitudes depend
in turn on what ordinary people consider as “right” and “wrong.” Norm theory
explains the tendency of most people to adhere to social norms, culturally
developed rules that have not—and may never—migrate into law.[46]
People adhere to social norms because they fear sanctions ranging from dirty
looks and unfavorable gossip to loss of job opportunities and business
relations. When norms are long-established, individuals tend to internalize
them—to adhere to them automatically without consciously assessing the costs
and benefits of compliance or non-compliance.

Social norms may be more influential than law in shaping
behavior relative to corruption. If it is customary in a particular society to
kick back some of the revenue available from a public contract, if “everyone
does it,” such conduct is difficult to end merely because the law says that it
is impermissible. Conversely, if relevant norms say that one must never provide
favors to a decision maker from whom one hopes to obtain a benefit, corruption
in the form of kickbacks is unlikely, and the necessity for criminal
investigations and prosecutions will be low.

Norm theory provides the crucial insight that having good
laws is insufficient for anti-corruption efforts to succeed; indeed good laws
may be of only marginal importance. What matters far more is having cultural
norms that operate within the business community, the professional legal
community, including the judiciary, and the civil service, and within the
political class that sees corruption as wrongful and unethical. It also is
essential for the broader society to find corruption to be abhorrent rather
than part of the national culture.

Changing norms within a distinct professional or political
class or within the society generally is not impossible, but it is difficult
and takes time. It certainly takes a sophisticated understanding of existing
norms and how they operate, and of the likelihood that alternative strategies
with a sharp focus can succeed.

This subsection offers five case studies of successful and
not so successful anti-corruption undertakings, as well as a synthesis of United States
public corruption cases that resulted in convictions. The first case study is
drawn from Italy and the
others are drawn from the United
States. The five case studies are offered in
narrative form, leaving it to § III. D. to synthesize from them some axioms
about the design of a successful anti-corruption campaign.

From two of the case studies, Appendix I reproduces
extensive portions of trial transcripts of witness testimony or recorded
conversations in order to show how the evidence gathered in even the most
effective public corruption cases often requires interpretation by the fact
finder in order to draw inferences of illegal conduct.

Giovanni Falcone, born May 18, 1939 in Palermo, Sicily,
is known as one of the first Italian magistrates to attack the Sicilian mafia.
His experience demonstrates the power of high-profile prosecutions to galvanize
public support, while also demonstrating the dependence of such prosecutions on
the willingness of criminal insiders to provide information and to testify.

Falcone grew up in the Magione district, a poor neighborhood
of Palermo,
with the mafia all around him. In 1964 Falcone was appointed as a judge and
finally in 1980 he began his career as an anti-mafia investigating magistrate.[47]
He was one of the major organizers of the Maxi trial that began February 10,
1986 and lasted until December 16, 1987. The trial resulted in the conviction
of 360 of the original 474 Mafiosi members of the Sicilian Cosa Nostra. Thomas
Buscetta, a member of the Sicilian Mafia, was the first Mafia member to become
an informant, and with his testimony Falcone helped convict the 360 Mafiosi
including the Sicilian mafia leader Salvatore Riina. The trial was the first
major successful blow against the Sicilian Mafia.

Unfortunately, due to relaxed penal codes, most convicted
Mafiosi were released. Regardless, Falcone’s actions started a wave of
anti-Mafia sentiment in Palermo, and Mafia crime
in Sicily was
dramatically reduced after the Maxi trial. After the trial Falcone was moved to
Rome to preside over the national anti-Mafia
unit in the Ministry of Justice and became Italy’s main prosecutor for Mafia
cases. On May 23,1992 shortly after returning to Palermo,
Falcone and his wife Francesca Morvillo were killed by a bomb while driving the
short distance from the Palermo
airport to the city. It is believed that the murder was organized by Salvatore
Riina in revenge for Falcone’s convictions of Mafiosi during the Maxi trials.
Giovanni Brusca, one of Riina’s associates, was convicted for Falcone’s murder
after admitting to being the one who actually detonated the explosives. Falcone
is now honored for putting anti-mafia politics in motion in Sicily and for his bravery in his quest for
justice.[48]

The Watergate investigation, named after the office complex
where agents of President Richard Nixon’s 1972 reelection campaign (CRP[49])
broke into the offices of the Democratic National Committee (DNC), resulted in
the only resignation of a U.S. President in history, in August, 1974. The
Watergate experience shows how high-level opposition to investigation of
misdeeds by government officials operates to thwart the efforts by ordinary
criminal justice authorities, but also shows the power of the press, of
legislative hearings and investigations, and of public opinion to accelerate
the momentum of high-profile investigations. This enables an investigation to
“follow the money,” and eventually to turn insiders into confidential
informants or cooperating witnesses as they are threatened with prosecution themselves.

The investigation began on June 17, 1972, with the arrest of
five burglars inside the DNC offices, who initially were processed as ordinary
criminal defendants. Police, however, were curious about the notation in a
notebook found on defendant James McCord, “Howard Hunt– WH.” McCord, the leader
of the break-in team, was Director of Security for CRP. He reported to Howard
Hunt, a White House consultant, who, in turn reported to G. Gordon Liddy and
Chuck Colson, both Special Counsels to the President. Liddy, Hunt and the
burglars were indicted on September 15, 1972.

The burglars had in their possession large sums of cash,
which had originated with Hunt and Liddy, who drew on CRP funds. The FBI traced
the money to Mexico,
and scheduled interviews with two individuals responsible for laundering
campaign contributions for support of illegal White House political operations
through a Mexican bank account. The White House staff was carefully monitoring
the progress of the FBI investigation, receiving investigative reports and
sitting in on some FBI interviews.[50]
Worried that the FBI would follow the trail back to CRP, which the President
and his advisers knew to be the source, the President ordered the CIA to tell
the FBI to discontinue its effort to “follow the money” on the grounds that it
would jeopardize a CIA operation. The Director of the CIA balked, although the
Deputy Director of the CIA managed to stall the FBI investigation for two
weeks.[51]

White House staff, and the President himself, scrambled to
raise hundreds of thousands of dollars to buy silence from the arrested
burglars.[52] Public
interest intensified in the money angle after Howard Hunt’s wife was killed in
a plane crash at Chicago’s
Midway airport on December 8, 1972 and was discovered to be carrying $10,000 in
cash, subsequently revealed to be part of the hush money.[53]
Meanwhile John Sirica, the United States District Judge assigned the case,
threatened the burglars with long sentences in an efforts to force them to
disclose what they knew. In response McCord, despite having been impliedly
promised a pardon by the President, wrote a letter to Judge Sirica hinting that
dark forces were behind the burglary.[54]

Two unknown WashingtonPost reporters, Bob Woodward and Carl
Bernstein, supported consistently by the Managing Editor of the Post, Benjamin Bradlee, undertook a
painstaking, two year investigation of the Watergate affair. Their stories
appeared regularly in the Post, which
kept allegations against the Nixon Administration alive in the public mind.[55]
Woodward and Bernstein got tips from confidential sources indicating that money
found on the burglars was linked to CRP through a bank account in Miami maintained by one of
the burglars. Their investigation and subsequently published stories crystallized
growing public suspicion that the White House was behind the burglary and was
trying to frustrate the FBI investigation.[56]
Secretaries and other lower level personnel at CRP, all of whom were terrified
to talk to investigators or reporters,[57]
began to identify higher level people involved in the money trail. A
confidential informant, known for years as “Deep Throat,” and subsequently
revealed to be Mark Felt, the Associate Director of the FBI, consistently
encouraged Woodward and Bernstein and gave them tips on how to direct their
investigation.

On May 18, 1973, President Nixon yielded to public and
congressional pressure fueled by the Woodward and Bernstein stories and agreed
to appoint a Special Prosecutor, free of supervision by the Justice Department,
Archibald Cox, a distinguished law professor from Harvard, and mentor of
Attorney General Elliott Richardson, was appointed. Cox called top aides to the
President before the federal grand jury in the spring of 1973. Most of them
lied about the White House involvement in the break-in and other illegal
activities, but the experience and the threat of prosecution began to dissuade
more and more of them from participating further in the cover-up, and raised
temptations to go over to the Special Prosecutor’s side and betray the
President.[58]

Ultimately, the President was brought down by audio
recordings of his private conversations, revealing that he orchestrated the
Watergate cover-up and by the probability of impeachment by the House of
Representatives and conviction by the Senate. A recording widely believed to
show that the President had advance knowledge of the break-in itself, was
mysteriously erased, under circumstances suggesting that the President erased
it himself.[59] The recordings
had been made secretly at the direction of the President, apparently for
archival purposes. Their existence was discovered through testimony before a
Congressional committee by Alexander Butterworth, one of the President’s top
personal aides, one of a handful of people who knew about the White House
taping system.[60]

The President ordered the Attorney General to fire Cox on
October 20, 1973 after he pressed too hard for the tapes and for other evidence
in possession of the White House that the President claimed was privileged.[61]
The firing, known as the “Saturday Night Massacre,” was accompanied by FBI
agents taking control of the facilities and files of the Special Prosecutor.
Attorney General Richardson and Deputy Attorney General William Ruckelshaus
resigned rather than carrying out the President’s orders to fire Cox. Robert
Bork, later a nominee to the Supreme Court and then the number three person at
the Justice Department, agreed to become Acting Attorney General and to carry
out the President’s orders. Another special prosecutor was appointed and
continued to insist on disclosure of the tapes, resulting in a Supreme Court
decision that the tapes must be disclosed,[62]
with which the President complied.

As the investigation proceeded, several CRP executives and
high-level White House aides were prosecuted and convicted of obstruction of
justice, including the Attorney General, the White House Counsel, the Acting
FBI Director, the Chairman of CRP and former Secretary of Commerce, the
President’s Chief of Staff,[63]
and his Chief Domestic Adviser.[64]
In indicting seven of these individuals, on March 1, 1974 the federal grand
jury named the President as an unindicted co-conspirator.

The success of the Watergate investigation shows the
interaction of many strands of a commitment against official wrongdoing. If the
CIA director had not refused to interfere in the FBI’s investigation, if
Woodward and Bernstein had not pursued their investigation and received
confidential tips from dozens of knowledgeable individuals, if Judge Sirica had
not succeeded in “breaking” McCord and Hunt, if the Democratically controlled
Congress had not aggressively pursued hearings on Presidential involvement in
Watergate, if the President had destroyed the tapes, or refused to accede to
the Supreme Court’s decision, the investigation would have run aground, at
least before the President was driven from office.

Judge Thomas J. Maloney was convicted on April 16, 1993 of
fixing four cases, three including murder indictments, and for attempts to
persuade a witness not to cooperate with the FBI.[66] Former
associates of the judge, who served as "bag men" for passing bribes
to the judge from two lawyers, later became key cooperating witnesses against
Judge Maloney.

The role of one of these cooperating witnesses in the
investigation was popularized in Scott Turow's 1999 novel, Personal Injuries, in which the protagonist is a successful
personal injury lawyer who bribes judges, gets caught, and agrees with the FBI
to wear an eavesdropping device as he continues the bribery. Turow was the lead
Assistant U.S. Attorney in prosecuting judges caught in the Greylord scandal.
Cooperating witness Robert Cooley wrote a book of his own: When Corruption Was King.[67]
The bribe charged in the Maloney indictment occurred after Cooley was
approached by a Democratic alderman and ward secretary who wanted a
"guaranteed" not-guilty verdict for a hit man for organized crime.[68]

The FBI already had been suspicious of Judge Maloney and had
agents monitoring trials in which bribes were taken. Early investigations
showed that Maloney's expenditures could not be supported by his legitimate
income. After the Greylord Investigation obtained evidence against the judge,
his trial lasted more than six weeks, involved more than forty witnesses,
historical testimony, undercover audio and video recordings, documentary proof
and financial analysis.[69]

Among other things, the FBI told Cooley to file a fake
lawsuit to create an opportunity for the judge assigned the case to accept a
bribe.[70]
An FBI special agent from Arizona,
Terrence Hake, played the role of the plaintiff in one of the fake cases,[71]
and subsequently testified that he passed money to the judge.[72]
The FBI notified the chief judge of the criminal division of the Cook County
Circuit Court, the CookCountyState’s
Attorney and the Illinois Attorney general before filing the fake cases.[73]

The United States Court of Appeals for the Seventh Circuit
approved the investigative techniques used in Operation Greylord in United States v. Murphy,[74]
including the use of "bait" money offered by cooperating witnesses,
and the use of phantom cases. It is a practical necessity, the court observed,
to use undercover agents and cooperating witnesses who take part in bribe
transactions. Without them no victims are likely to come forward and testify,
even if they know about the bribe.[75]

The fruits of the Operation Greylord investigation can be
appreciated by quoting the trial judge in the Shields case. The electronic surveillance was crucial in the cases:

“In the final
analysis, it was Shields' own words which convicted him. The evidence disclosed
that on the morning of September 2, 1988, Cooley contacted DeLeo [the judge’s
co-defendant and bag man] to inform him that he had been served with an
emergency motion by the defense in the Nichols case seeking release of the
partnership funds which Cooley had succeeding in freezing. The motion was
noticed for hearing later that morning. Cooley told DeLeo that if the motion
were denied and the money not released, the defense would be forced to settle
the case.” (See Appendix I for
surveillance transcripts.)

In the end, Cooley put himself in a witness protection
program of his own design for a while, but could not resist the temptation to
make phone calls and travel to Chicago.

The FBI's ABSCAM investigation began in 1978 and resulted in
the conviction of a United States Senator, six members of the United States
House of Representatives, the mayor of Camden,
New Jersey, several members of
the Philadelphia City Council and an inspector for the Immigration and Naturalization
Service. It was the first FBI investigation aimed at trapping corrupt public
officials. The investigation and the subsequent convictions highlighted the
power of video and audio recordings in convincing juries to convict corrupt
public officials who offered innocent explanations for ambiguous statements and
conduct.

The investigation proceeded through a bogus business called
"Abdul Enterprises, Ltd." FBI undercover agents posed as Middle
Eastern businessmen who offered money in exchange for favors to a fake Arab
sheik named Abdul, who wanted to purchase asylum in the United States, who wanted partners
for an investment scheme, and who wanted help in getting money out of his
country. Thirty-one public officials were targeted with the aid of Melvin Weinberg,
a confidential informant turned cooperating witness. Indeed Weinberg conceived
of the scheme and proposed it to the FBI when the FBI persuaded a federal judge
to release him after his conviction on federal wire-fraud charges. During the
sting operation, the FBI disbursed more than $400,000 in bribes, and paid
Weinberg $140,000.[76]

The eventual defendants were attracted by claims that the
imaginary sheik contemplated large projects, such as a hotel in Philadelphia. Weinberg
told Philadelphia attorney Howard Criden, who
had made introductions to other ABSCAM defendants, that the sheik’s
representatives would be coming to Philadelphia
and they wanted to meet Congressman Myers or Lederer and, on Criden’s
suggestion, with City Council President George Schwartz, Majority Leader Harry
Jannotti and Member Johansen. Weinberg sought guidance on the “proper tariff”
and on whether he could speak “candidly” with the officials.[77]

The ABSCAM operatives, once they had evidence of corruption
of certain public officials, sought to target others. (See Appendix I for surveillance transcripts.)

The success of the ABSCAM investigation shows the
essentiality of audio and video recording, the utility of a sophisticated cover
story, and complicated, sustained relationships among undercover law
enforcement personnel, cooperating witnesses, corrupt intermediaries and
targeted public officials themselves.

Operation Silver Shovel occurred from 1992 to 1995 and
resulted in the conviction of 18 public officials and co-conspirators,
including six then current or former Chicago
city aldermen.[78] The
Silver Shovel investigation shows the essentiality of confidential informants,
audio recordings and skilled undercover agents in obtaining incriminating
evidence.

John Christopher was the owner of several excavation and trucking companies
in Chicago.
Christopher agreed to be a cooperating witness and to wear a wire in a plea
agreement in a prosecution of him for tax evasion, bank fraud and bribery.[79]
The FBI recruited Christopher to investigate Alderman Virgil E. Jones, whom the
FBI suspected of corruption.[80]
Christopher, along with an FBI undercover agent, recorded on audio or video
equipment more than 1,100 meetings or telephone conversations.[81]
The recordings provided evidence of more than $2.2 million worth of bribes,
purchases of cocaine, and money laundering.

The defendants routinely accepted cash payments from either
Christopher or the undercover Agent and in return channeled work to a sham
Minority Business Enterprise. A city commissioner accepted a cash bribe in
exchange for placing the undercover Agent's company on the city's snow removal
work list and concealed the fact that the undercover Agent's company was a sham
Minority Business Enterprise (MBE).

An Alderman agreed to help the company find work, in return
for a $10,000 contribution to his campaign.[82]
When Christopher said that many of the names of those "contributing"
would belong to dead people, the city official replied, "the more dead the
better." In January 1995, the official accepted the $10,000 contribution,
along with a list of 15 fictitious contributors. That same day, Christopher's
business was placed on the city's roster of minority snow removal contractors.[83]

An Alderman accepted cash bribes totaling over $36,000 in
exchange for using his political power to benefit Christopher and the
undercover Agent. This official interceded with several elected officials to
assist Christopher's company for favors such as: getting Christopher's company
falsely certified by the city as a woman-owned contracting company so that it
could receive woman- owned set-aside business; obtaining a city liquor license
for a proposed liquor store site to be operated by the undercover Agent; and
gaining the support of several city officials for their assistance for various
projects operated by Christopher and the Agent's company.

Christopher and an Alderman met in a restaurant in 1993,
during which time Christopher gave the official $3,000 in small bills and
further discussed aspects of Christopher's business.

Christopher told the associate of a former city commissioner
that he was willing to pay a percentage of the value of an excavation
subcontract in exchange for the official's influence in helping Christopher's
company obtain the subcontract work. Christopher then paid the men many times
during the next several months, once giving one of the men a cigarette pack
containing $4,000.[84]

“On May 4, 1994, Fuller met with Blassingame [a middleman]
and Agent Sofia at Marche Restaurant in Chicago.
Fuller told Agent Sofia that although there were a few problems with the permit
application, if Agent Sofia revised the permit request and “get it back to
us[,]. . . .[t]he next board meeting we'll have it ready.” The next day, Fuller
asked Christopher to come by his office and pick up the Whelan letter. There,
Christopher gave Fuller $5,000 cash in a McDonald's bag. Fuller accepted the
money after initially responding, ‘That's not necessary, John.’ Fuller and Christopher also
discussed Christopher's record of dumping and leaving debris on public
property. Fuller told Christopher that “[w]e don't want you to leave what we'd
consider a ···· mountain there.”

Some of the targets were suspicious:

“On May 10, 1994, Fuller, Blassingame and Christopher met at
Chez Paul Restaurant to discuss potential problems with the permit due to
Marlboro's dumping history. Nine days later on May 19, 1994, Christopher,
Fuller and Blassingame again met at Chez Paul, this time without Agent Sofia.
There, Fuller expressed his discomfort with Agent Sofia: ‘I don't even know
this man. . . . A man becomes very generous and I get nervous . . . . Hey, get
very nervous.’ Fuller also told Christopher that “I'm gonna get you it, help
you get a permit. After that, I'm through.”

“On June 3, 1994, Blassingame called Agent Sofia for an
advance of $2,000 as ‘a little financial help to hold me over while I'm working
on this stuff.’ Agent Sofia
agreed and paid him $2,000 cash the next day. Four days later, Agent Sofia and
Blassingame were meeting at Chez Paul Restaurant when Fuller unexpectedly
arrived and told Agent Sofia that ‘I'm very uncomfortable with you. . . . I'll
tell you straight up . . . . I don't know you. I don't know where you're from
or anything. . . .’” [85]

Convictions for public corruption in the United States tend to result from
identifiable patterns.

The first pattern relies heavily upon the actions of the
person who has been offered a bribe. The briber approaches the public official
with an offer, to which the official responds in a non-committal manner.[86]
Immediately following the encounter, the official reports it to a law
enforcement officer.[87]
The official then contacts the original corruptor and arranges for a meeting at
which the official wears a wire.[88]
The official then proceeds to participate in the corruption scheme until it
nears completion, at which point the authorities intervene and apprehend the
criminals.[89]
Whenever the official meets the briber, their meetings are recorded by audio,
video, or both.[90] These
recordings serve as the primary evidence at trial, and are supplemented by the
testimony of the official and a variety of other evidence that corroborates
what is in the recordings.[91]
For example, evidence of recording the sale of an apartment can be used to
verify testimony that the apartment was bought at an inflated price in order to
buy off an official.[92]
This same sequence of events can also lead to the conviction of an official who
is soliciting a bribe. In United States v. Davis,[93] a
lobbyist met with a state representative, and the representative alerted the
lobbyist that she would vote for his legislation for $25,000.[94]

In this pattern the official is motivated to report the
bribe offer by one of two things. One, the official morally objects to the
attempt at corruption and agrees to help in the investigation in order to rid
the system of it. Two, the official is motivated by fear. The fear can come
from the unknown consequences of having an illegal relationship with unsavory
characters, buttressed by a fear of the legal consequences that could one day
await him. In none of these cases is witness protection an issue. This is
probably so because in none of these instances were the stakes so high that the
criminal would have an incentive to threaten the official. Generally, those who
have been convicted have only faced a couple of years in prison.[95]
In United Statesv. Dansker, the bribers did threaten to publicize damaging
information about the official’s administration, but this did not deter the
mayor from continuing to assist in the investigation.[96]
These threats may be less powerful than usual because the good press the
official would get from his/her involvement with the investigation would likely
offset any bad press created by the bribers’ accusation.

The second pattern for unearthing corruption relies upon a
cooperating witness (“CW”) who is in trouble with the law. The CW is either
previously aware,[97]
or becomes aware of an attempt at bribery.[98]
The CW agrees to continue his relationship with the corrupt person under the
supervision of the investigators.[99]
The target of the investigation is recorded either by audio, video, or both
while participating in corrupt behavior and transactions.[100]
Once the target has sufficiently tied his own noose, then the arrest is made.[101]

The CW’s primary motivation is to alleviate his/her own
legal troubles. Sometimes this comes in the form of immunity,[102]
while other times it is in the form of reduced sentences.[103]
One characteristic distinct to this pattern is the desperation of the CW. Since
the CW is already in trouble, he/she risks less by going to the police. The
increase in danger that the CW faces may oftentimes be outweighed by the
benefits received from the government.

The third pattern is based upon an active investigation or
“sting” operation into corruption by a law enforcement agency. This can be a
large, coordinated investigation such as ABSCAM,[104]
or a smaller investigation aimed at a specific government activity.[105]
The issue of entrapment may become a problem in situations like ABSCAM, but so
long as officials are not targeted and they become involved by their own will,
then the operation is legal.[106]

One common feature of all three of these patterns is the
role that audits of government funds and private finances can play in
initiating these investigations. Suspicion is created by the audit, and then
followed up by an investigation into the parties and dealings connected to the
money.[107] If
nothing else, this forces the criminals to operate in a more complex manner,
and increases the number of opportunities for them to make a mistake.

A synthesis of the characteristics of the investigations and
successful prosecutions in the case studies, supplemented by discussions with U.S.
prosecutors and investigators, supports a number of axioms about how to
organize an effective anti-corruption initiative.

An investigator cannot successfully investigate and a
prosecutor cannot successfully prosecute that which he or she does not
understand. A threshold requirement for any anti-corruption investigation is to
master the informal networks in which corruption occurs, including the formal
relationships and authorities of the participants, the content of the laws that
apply to their dealings, less formal friendship and family relationships, when
and how they interact with each other and with outsiders, and the language and
expressions that they use. Rarely within such networks is everyone corrupt.
Some actively participate in illegal conduct; some oppose the conduct; some
simply turn away. Gradually, as an investigator builds an understanding of the
network, the identity of suspects crystallizes.

Investigators and prosecutors almost always are outsiders to
the corruption networks they investigate and prosecute. They need insiders to
educate them on who is who and who does what. A common first step in any
anti-corruption investigation is to build relationships with confidential
informants who have the requisite knowledge. Sometimes such persons come
forward through hotlines or direct telephone, email or visits. Otherwise they
must be approached by the investigative team in ways that do not scare them
off. Many confidential informants are paid for their information; others are
motivated by moral outrage at the corrupt conduct they witness; others are
motivated by internal rivalries with those they accuse of corruption. Because
of the diverse and not always-apparent motivations of potential informants,
good investigators rarely rely on a single informant, but instead develop a set
of informants whose information can be checked against the information received
from other sources. Some informants develop into cooperating witnesses; the
cooperation of others is never revealed.

Good anti-corruption investigation includes routine or
ad-hoc monitoring of the relationship between the apparent wealth of public
officials and known legitimate sources of income. A public official who drives
expensive cars, lives in opulent homes, or takes high-priced vacations, beyond
what could be afforded on the official’s salary and other legitimate sources or
income or family wealth, are natural targets for further investigation. Access
to financial transactions by such potential targets through bank-account
records or otherwise is helpful.

An important difference exists between criminal intelligence
activities and investigations aimed at successful prosecution. The former is
intended to develop an understanding by law enforcement personnel of corruption
patterns and networks. The latter is intended to result in convictions of
wrongdoers. Both are necessary. As criminal intelligence activities identify
promising targets, investigators and prosecutors must shift their focus to the
development of admissible evidence against wrongdoers. Confidential informants
must be supplemented by undercover agents and cooperating witnesses who will
testify. The elements of specific crimes must form a template for collection of
evidence. Investigators and prosecutors must conduct themselves so that they do
not compromise the admissibility or persuasiveness of useful evidence by violating
laws on eavesdropping or entrapment.

A distinction must be drawn between testifying witnesses and
"informants." Most informants are “confidential informants” (“CIs” in
U.S.
law enforcement parlance), and it is rare to compromise such an informant’s
confidential status by having him or her testify. Testimony almost always
relies on “cooperating witnesses,” who typically are members of the criminal
enterprise who have decided to cooperate.

Informants may be recruited by spreading money around.
Cooperating witnesses generally need some other form of motivation, such as
being confronted with prosecution themselves, or having been betrayed by those
they accuse. Rare is the successful investigation and prosecution that does not
turn on some kind of special vulnerability of cooperating witnesses.

Typically, U.S.
investigators seek to identify persons within a corrupt network who can provide
evidence against those higher up in the network. Such persons become interim
targets. Evidence is developed against them—usually it is easier to get
evidence against lower-level facilitators than against masterminds—and they are
confronted with the evidence. Unless they are willing to provide information
and possibly to testify against more senior participants, they will be tried,
convicted, and sent to jail. If they cooperate, they will be immunized from
prosecution or receive lighter sentences. Such a bottom-up approach was used in
all of the case studies and in almost all other U.S. public corruption
investigations.

In occasional cases, potential witnesses come forward
because they are afraid for their physical safety and want protection from law
enforcement personnel or because their consciences no longer permit them to
remain silent, as in the case of lawyer Robert Cooley in the Greylord
investigation of Chicago
judicial corruption.

The credibility of cooperating witnesses at trial is an
important consideration. Payments to cooperating witnesses will surely be used
by the defense to attack their credibility at trial. Similarly, personal
antagonism toward those they accuse, or expectations of favorable consideration
by prosecutors also can undermine the effectiveness of the evidence they give. Judicial
fact finders usually are unwilling to convict based on testimony by such
witnesses alone. They require some form of corroboration, which can be achieved
if a large number of cooperating witnesses testify, if good forensic evidence
is available, such as financial records, or most commonly by evidence in the
form of audio or video recordings of illegal conduct by others. Cooperating
witnesses often assist in obtaining such electronic evidence by wearing
“wires.”

Witness protection is an important tool in anti-corruption
investigations, depending on the perception that those turning against corrupt
officials will face physical threats to themselves or their families. But
witness protection is difficult to administer, even in the United States. It is exceedingly
difficult to persuade witnesses to relocate. Moving someone to a remote place
may be almost impossible to accomplish if the witness has any other
alternative, such as not testifying. In several of the public corruption cases
investigated by the FBI, the FBI has offered witness protection and pressed
informants or cooperating witnesses to participate in the witness protection
program, only to be met with refusals. Moreover, many of them hate it when they
do accept protection, especially urban American “wise guys” who are moved to Boise, Idaho or Brownsville, Texas.
Much inertia must be overcome to persuade people to leave friends and family
and come to a place where they may not speak the language and where the culture
is very different; the older the witness, the more difficult the problem. A
participant who seeks or accepts relocation must commit him or herself never to
have contact, for the rest of his or her life, with family members or friends.
Even if someone agrees to that condition at the beginning of protection, most
are unable to live up to it over time. Accordingly, a substantial fraction of
witness protection efforts are unsuccessful, not because law enforcement
authorities have failed, but because the protected witness undermines the
protection.

When cooperating witnesses live in tightly-knit communities,
protecting them may require relocating them to a foreign country. Offers of
cross-border relocation as witness-protection measures depend on international
cooperation; states where witnesses are to be relocated must be willing to
grant visas and citizenship or long-term residence permission. Getting another
country to take them is a huge problem, particularly if they have been involved
in a criminal enterprise. Current restrictions on immigration because of
terrorism concerns and growing xenophobia exacerbate the problem.

Overly attractive witness-protection opportunities, however,
especially relocation possibilities, may induce perjured testimony by
individuals desiring a sure way to emigrate to the United States or elsewhere. While
factfinders are unlikely to believe entirely fabricated testimony, incentives
to make up good stories in order to be relocated are evidence in asylum
litigation, and can waste significant amounts of investigative resources.

Finally, and most importantly, witness protection programs
are enormously expensive. Even when they do not involve relocation, but merely
provide enhanced local security for witnesses, they require around the clock
security personnel. This equates to at least a half dozen full time equivalent
positions of the protecting agency. Witness protection involving relocation
involves significant expenditures for travel, subsidy of living expenses, and
possibly the purchase or rental of a dwelling for the witness. These expenses
are ongoing.

Fact finders in U.S. public-corruption trials have
come to expect video or audio recordings of corrupt conduct by those accused of
corruption. Almost any conceivable cooperating witness is subject to
impeachment because he has been paid by law enforcement officials, because he
has a grudge against those he accuses, or because he has exchanged testimony
for not being prosecuted himself. Electronic evidence is not subject to such
attacks. Moreover, defense lawyers have a harder time convincingly attacking
the accuracy and interpretation of recordings than attacking the perceptions of
witnesses. The fruits of electronic surveillance can provide good corroboration
and may be the foundation of a prima facie case.

U.S.
law enforcement and intelligence professionals distinguish among “wiretaps,”
“wires,” and “bugs.” A wiretap intercepts telephonic, fax, or email
communication involving parties none of whom consent to the interception. A
wire is a recording device used by one of the participants to a communication.
A bug intercepts communications occurring face-to-face without the consent of
the participants. The FBI prefers wires to wiretaps because wiretaps require
court authorization, while recording of conversations or telephone calls by a
participant does not. When court authorization is required, there always is a
risk that it may be denied, or that subsequent legal challenges to the validity
of the “probable-cause” evidence submitted in support of the authorization will
be successfully attacked at trial, resulting in the exclusion of the evidence
obtained through the surveillance, thereby dooming the prosecution. Moreover,
the burden of putting together a case for judicial surveillance authorization
is substantial.[108]

Wiretaps, wires and bugs are not silver bullets, however.
Audio and video recordings often are difficult to interpret. Speakers may speak
indistinctly against background noise. Even when their words and sentences can
be discerned, they may be open to varying interpretations. People talk in slang
and interrupt each other before thoughts are completed; people do not dictate
perfect sentences and paragraphs over the telephone or in conversation.
Electronic surveillance is far more useful to collect evidence of ongoing
criminal enterprises, when the participants can be caught in the act of
offering or accepting a bribe, than to obtain evidence of past crimes.
Sometimes, informants will try to induce suspects to talk about past events on
tape, but it rarely works. The transcripts of the electronic surveillance from
the case studies quoted in Appendix I show how evasive the recipients of the
bribes were and how forcefully the undercover agents had to coax them into saying
something or doing something incriminating.

Electronic surveillance is also labor intensive. Someone has
to listen to every conversation. It takes as many minutes to listen to a
conversation as it did for the conversation to occur. Producing transcripts is
even more time-consuming, and if the quality of the recording is not good, it
can take a very long time indeed. Often, two listeners will disagree on what
they hear; one may hear something clear as a bell while the other hears only
noise.

Moreover, with the advent of audio and video editing
software, usable on any small computer, the reliability of recordings obtained
through surveillance easily may be drawn into question. Professionalism and
rigorous chain-of-custody are essential.

Despite the difficulties inherent in electronic
surveillance, it is extremely difficult to get a conviction in a corruption
case without it. Electronic surveillance is most effective if it is deployed
against specific targets and classes of transactions. It is more likely to be
successful if deployed in ongoing criminal enterprises, and it must be narrowly
targeted to make the workload of processing the results tolerable. In addition,
of course, as in all of the case studies, electronic surveillance cannot occur
unless undercover agents and/or cooperating witnesses participate in obtaining
it and are available to authenticate it at trial.

As the preceding axioms suggest, successful anti-corruption
investigations require effective design and execution. Confidential informants
and cooperating witnesses cannot do it on their own. Success depends on
undercover agents and case managers. Undercover agents are almost always more
skilled and persistent than cooperating witnesses in steering conversations
with suspects that produce admissible and convincing evidence on video or audio
recordings. Undercover agents are more likely than cooperating witnesses to
place themselves in physical danger. They are likely to be more believable at
trial.

Undercover agents can be effective only, however, if they
share ethnic and socio-economic characteristics of targets, or have a cover
story that explains their interest in dealing with the targets. Ethnicity often
binds criminal enterprises together, and someone of a different ethnicity or
language background stands out like a sore thumb, and is a target for suspicion
and mistrust. Infiltration of the Ku Klux Klan was possible only because FBI
agents with Southern backgrounds were available to work undercover. Success in
the Silver Shovel investigation in Chicago
required undercover agents who were presented as businessmen involved in the
activities being infiltrated. The fake lawsuit in Greylord was believable only
because it was filed by lawyers regularly litigating before the targeted judge.

In some cases it may be possible or necessary to introduce
an undercover agent of a different ethnicity. In the ABSCAM investigation, for
example, the imaginary sheik was presented as an Arab while the defendants were
Americans of various non-Arab nationalities. The use of such an undercover
agent effectively depends upon the nature of the cover story for the “sting,”
if one is used. For example a sting premised on penetrating human trafficking
rings might plausibly involve an undercover agent from a region other than the
region targeted by the investigation if the other region is supposed to be part
of the supply chain of human victims of the trafficking—either the source or
destination.

Investigators must have the requisite expertise and must not
depend on targets or friends of targets for job tenure or resources.

Public corruption investigations are more challenging than
investigating street crime. Some members of an effective investigation team
must be good sociologists to understand how corruption networks operate through
extra-legal channels. Others must be empathetic enough to build trust of
confidential informants and cooperating witnesses. Others must understand the
technology of eavesdropping equipment. Others must know the law. Some of them
must have the discipline, acting ability, courage, and credibility to operate
undercover and to testify about it afterwards. In many investigations,
accounting knowledge is necessary. Auditors and accountants are important, but
the number of cases in which they are needed varies with the sophistication of
the criminal enterprise. It does not take much training to confront someone
making €10,000 a year with the fact that he has €1 million in the bank.

Rarely are all of these skills found in a single
investigator; they usually are possessed by specialists comprising a
multi-investigator team. Assembling and managing such a team requires good
administrative skills, knowledge of best practices in anti-corruption
investigations and the kinds of leadership qualities that earn a team leader
the respect of team members.

But skill is not enough. Investigators also must be brave
enough to endure actual or perceived threats to their future economic welfare
and to their own physical safety and that of their families. Giovanni Falcone
was, after all, killed. They must have sufficient character to resist offers of
substantial amounts of money from those they are investigating. Their loyalties
must be to the investigation and not to the targets. Resources for the
investigation must not be controlled by those being investigated.

Prosecutors must have the requisite skills and not depend on
targets or friends of targets for job tenure or resources. Anti-corruption
prosecutors and investigators must work closely together from the beginning to
the end of an anti-corruption investigation. Any idea that investigative
agencies work on their own to develop a complete package to be delivered to a
separate prosecutorial agency at the end of the investigation is fatally
flawed. Prosecutors must provide investigators with guidance throughout an
investigation on what can obtain a conviction. Both investigators and
prosecutors must collaborate on selecting lower level targets to be threatened
with prosecution in order to recruit them as cooperating witnesses.

Once an investigation is complete, some members of the
prosecution team must be good enough trial lawyers to present the available
evidence in a way that will convince a judicial factfinder to convict.

Prosecutors must have the same levels of persistence,
bravery, and incorruptibility as investigators. A perfect investigative team is
worthless if the prosecutors to whom they deliver their investigative results
compromise the prosecution by not pursuing it aggressively or by leaking the
results to the targets.

And, of course, none of this does any good unless a
competent, courageous and honest judiciary will apply the law to the facts
uncovered by the investigation and convict when conviction is warranted.
Judicial forums deciding the case must not depend on targets or friends of
targets for job tenure or resources.

All of the case studies show that an outside investigative,
prosecutorial and judicial force was necessary for success. In the U.S.
cases, the investigations were conducted by the FBI, the prosecution was
undertaken by the United States Attorney’s Office, and the cases were tried by
federal judges. These federal institutions, of course, are not “foreign” in the
sense that they are not part of the United States legal system. They
are, however, foreign in the sense that they are federal instead of state or
local. FBI agents typically rotate throughout the United States, and therefore do not
depend upon local networks for career success. Federal judges enjoy life
tenure, and therefore do not depend upon any institution, federal, state or
local, for their continued economic welfare. U.S. attorneys, on the other hand,
typically are recruited from the local legal community, and go back to it after
their service is complete. In this regard, it was widely perceived that current
public corruption investigations in the Chicago
area would not have occurred but for the appointment of U.S. Attorney
Fitzgerald who was widely and accurately regarded as being independent, and
therefore in some sense “foreign” to the local legal culture.

It is hard to imagine that the Philadelphia Police
Department would have successfully investigated the President of the
Philadelphia City Council, or that the corrupt state judiciary in Chicago would have
convicted Greylord targets, including several judges.

It is hard to imagine that the Watergate Investigation would
have been successful if it had been left entirely to President Nixon, acting
FBI Director Gray, and Acting Attorney General Kleindeinst. It was only because
of the independence and the “foreignness” of Special Prosecutors Cox and
Jaworski, the independence of the Washington Post, and the President’s
democratic political antagonists in the Congress, that the investigation
succeeded—and of course the professionalism of the FBI, including the decision
by its Deputy Director to betray the Attorney General’s and President’s effort
to thwart the investigation. Italian investigative magistrate Falcone, though
formally part of the Ministry of Justice, attained independence because he was
astute in building public support for himself personally.

It is extremely difficult to provide the conditions
identified in this axiom and the two preceding ones absent a culture of
professionalism, which takes a long time to establish, and political will at
the top. The need for independent professionalism gives rise to the temptation
to bring in outsiders to investigate, prosecute and judge, but outsiders
usually lack the social and cultural connections to make an investigation
successful, and they also the lack the legitimacy that is necessary to build
public support.

Success in rooting out public corruption depends on
political will. Political will, in turn depends on public support. Public
support depends on press and media channels to inform the public about
instances of corruption and about efforts to hold accountable those who engage
in it. In other words, investigative journalism is an important part of the
anti-corruption arsenal. In the Watergate investigation, the WashingtonPost stories built public support for the Special Prosecutor, even
as President Nixon used all the powers of his office to undermine the
investigation.

Investigative reporters also have access to sources not
available directly to criminal justice authorities; they give informants
another market for their information. If the media can protect its sources, it
may be more attractive than regular law enforcement channels. It is not clear
where else FBI number two man Mark Felt could have gone, except to the press.
On the other hand, when informants go to reporters, they may be depriving law
enforcement of the same sources. Moreover, investigative journalism is
time-consuming and expensive. If it is done right and it really exposes
something that would otherwise not be exposed, it is useful. But law
enforcement has to follow up, or the exercise is fruitless, frustrating and
potentially dangerous for reporter and source.

Anti-corruption teams cannot assemble the evidence necessary
without tools for supplementing their human resources. State-of-the art
eavesdropping equipment is essential. Criminal procedure must permit them to
engage in eavesdropping, to deal with confidential informants and cooperating
witnesses. They must be able to subpoena financial records. They must be able
to execute search warrants before targets have notice and the opportunity to
hide evidence. Evidence obtained through undercover means must be admissible at
trial as long as the procedural requirements are followed.

In any society with officially reported 60% unemployment and
little street crime, a sizeable underground economy must be thriving. Any
underground economy thrives on corruption, at least of a petty sort. Such
corruption gets embedded in the culture. A broad anti-corruption campaign in
Kosovo premised on U.S.
definitions of “corruption” is doomed to failure. Nevertheless, it may be
possible to target certain types of corruption successfully, if the type of
corruption targeted is not conduct that large segments of the population rely
upon for survival.

This section takes the theory and experience from parts II
and III, and considers how they could be applied to corruption in Kosovo,
recognizing that conditions in Kosovo distinguish it in significant ways from
conditions in the United States,
Italy,
and other places from which best-practice axioms are drawn.

Consideration of the Neild framework[109]
instills pessimism about the prospects for reducing or eliminating public
corruption in Kosovo. His military-efficiency factor does not oppose
corruption; it leads certain parts of the Kosovar public to embrace it.
Kosovo’s progress toward independence occurred because of the KLA, which was
not an efficient military machine, but instead was financed, organized, and
operated in an informal manner in which corruption is widely believed to have
played a necessary role. Most close Kosovar observers of the KLA criticize KLA
financers for enriching themselves personally (whether or not they actually did
so), but at the same time shrug and say they suppose that was a necessary price
of raising money, at least some of which was put to effective use in arming and
equipping the KLA.

Kosovo’s long history of resisting “oppression” by
“occupying forces”—the Ottomans, then the Serbs, and then UNMIK—encourage a
spirit of defiance, secrecy, and non-compliance with formal norms, including
formal norms of honest government. In this context, reliance on informal family
and friendship connections in order to survive and prosper also increases the
reluctance to turn anybody in. Ratting out somebody in Kosovar society means
betraying the bonds which have permitted everyone to survive.

In addition, there is a general mistrust of government,
based on a belief that it is ineffective, not motivated by improving the lives
of the ordinary people, and thoroughly corrupt. This leads to a preference for
“informal” private enterprise, and the valid belief that some forms of
corruption are necessary to provide space for informal entrepreneurship.

The international embargo on the former Yugoslavia, growing out of the wars in Croatia and Bosnia in the early 1990s, created
enormous financial temptations for Kosovar Albanians to participate in
smuggling rings. As democratic political institutions in Kosovo were
constructed after UNMIK took over civil administration, a “closed-list” system
for electing members of the national and municipal assemblies prevented the
emergence of new political faces willing to criticize established
organizations. Having parties’ names on the ballot instead of individual
candidates’ names reinforced party control and made it difficult for new faces
to build effective political followings.

Although facts are hard to come by, it is widely believed
that Kosovo is an important hub for drug trafficking tying together demand in
Western Europe and the United States
with sources of supply in the Middle East and Asia.
As everywhere else, drug trafficking generates enormous revenue and can take
place only if formal legal norms are evaded. That combination makes drug
trafficking an enormous pro-corruption factor.

Kosovo also is believed by some outsiders to be a hub of
human trafficking, some of it aimed at supporting demand by internationals
stationed in Kosovo, and some of it transit traffic between Europe
and other parts of the world. Human trafficking and its economics are less well
understood than drug trafficking, but it is safe to say that any substantial
amount of human trafficking in Kosovo is a serious corruption problem because
it could not be carried out without acquiescence by some public officials.

Kosovo, unlike
oil-rich nations, may less subject to internationally procured corruption aimed
at obtaining “advantageous access,” to use Neild’s term. Kosovo is not entirely
free from this threat, however, because of the belief that its large lignite
resources and potential as a supplier of electricity to Europe
create opportunities for foreign-company bribery of public officials in order
to obtain advantageous concessions and contracts.

While the Neild framework provides little hope for
short-term effective anti-corruption efforts in Kosovo, two of his observations
may light a pathway. First, his emphasis on political self-seeking pragmatism
suggests that a charismatic new political face might see the possibility of
making a career and gaining power from a highly visible, results-oriented
anti-corruption campaign. Such a campaign might resonate with the general
public. In other words, the Falcone case study might be applied to Kosovo with
good results. The possibility depends, of course, on such an ambitious and
charismatic political figure emerging from the Kosovo population to lead an
investigative and prosecution initiative.

Although the U.S.
experience in rooting out urban corruption suggests the advantages of a
“foreign” investigative service and prosecutor—necessary to escape a local
political will favoring corruption. It also must be recognized that anything
foreign about an anti-corruption campaign is likely to be rejected on the
grounds of local ethnic and national solidarity.

Public resonance depends on whether the center of gravity of
public opinion can be made to believe that the daily lives of most people would
be better if corruption were lessened. One affirmative possibility is the
belief that job creation, economic progress, and the social welfare safety net
would be better if the government were less corrupt. In other words, an
effective political entrepreneur might be able to convince the general public
that the reason they do not have jobs, and cannot get good public service, or
adequate pensions or healthcare is because old-style political leaders are
stealing the resources, which otherwise would be adequate to provide what the
public wants.

Balanced against this possibility is the countervailing
belief by many in Kosovar society that they depend upon corruption in order to
advance their own individual and family interests. As an effective
anti-corruption effort takes shape, it is likely that Kosovo, like most other
societies, would move from general public support for an anti-corruption
campaign into resistance to any change in the status quo by concentrated interests
with vested advantage in current styles of corruption. In other words, the fate
of any anti-corruption campaign would require artful politics and a kind of
high-wire balancing act to get something done before the steam of broad public
support is overcome by the cold water of vested interests, which currently
include most of the political elites.

In order to be successful, any Kosovo anti-corruption effort
needs (1) a political will to fight corruption; (2) a willingness of victims to
report corruption; (3) competent, honest, and courageous prosecution and
investigation resources; and (4) a competent, honest, and courageous judiciary.
Parts one and two can be grouped together and considered essential. Both of
these primary conditions must be present for any anti-corruption campaign to be
at all effective. Once political will and a willingness of victims to report
corruption gains momentum, it then becomes possible for the political
establishment to develop parts three and four.

The first precondition, political will, is broad in scope
and refers to the credible intent of party leaders, public office holders,
candidates for public office, civil society watchdogs, and journalists alike to
attack corruption. Not everyone in government or civil society must have the
political will to attack corruption, but some of them must, and those having
the will must occupy strategic positions of power. The necessity of political
will can be illustrated through examples. Imagine an ambitious young Kosovar
prosecutor hot on the trail of one of Kosovo’s better known businessman’s
company’s links with drug smuggling. He collects all the right evidence to
create a slam-dunk case against the company, only to be tapped on the shoulder
at the last minute by his boss and reassigned to another case. Although the
prosecutor’s efforts demonstrate a flicker of political will, it is quickly and
easily extinguished. Or, consider a Kosovar investigative journalist who is
proud of his recently completed story on collusion among bidders in Kosovo’s
ongoing privatization process. He hands his well-sourced and well-documented
story to his editor. The editor reacts negatively because one of the bidders
colluding in the privatization process is a good friend of the editor. The
story gets shelved as a result. The hypothetical prosecutor and journalist lack
supporters in strategic positions of power.

Mobilizing political will requires exploring the interplay
among the various actors who may have—or lack—political will, and their
dependence and effect on public resolve. The objective of any anti-corruption
campaign must be to build political will among a small number of political
actors and to trigger a positive spiral of influence among themselves and the
remaining political actors. In fact, the synergy that is created by the sincere
efforts of just two influential political actors may be enough to create a
domino effect among other relevant political actors. Consistent investigative
journalism and press reports on corruption coupled with a sincere
anti-corruption platform in the campaign of a legitimate candidate for prime
minister would put pressure on those already in power to clean up their act.

In the complete absence of political will, the public’s
resolve is the only thing that can be counted on to bolster anti-corruption
energies. A public focused on corruption serves to create or otherwise
intensify political will among political actors because the behavior of
political candidates and office holders is driven by what they think will get
them elected or reelected.[110]
As long as the public opposes corruption, a political candidate who gets the
public to believe that he or she will fight corruption effectively will gain
support.

Attitudes of the international community are key to the
political-will equation. Even if public support for real anti-corruption
efforts exist, and even if Kosovar political entrepreneurs emerge who believe
they can advance their careers by successfully ferreting out corruption, the
resulting political will may be for naught if the international community
continues to exercise substantial control over the legal system and the
international decision makers do not have the political will. There is
substantial reason to believe that crucial actors in the international civil
administration in Kosovo have not seen it in their interests for public
corruption to be exposed and prosecuted. They have other priorities, promoting
human rights and interethnic tolerance, avoiding an outbreak of violence, and
steering public opinion in geopolitical directions sought by the international
community. To achieve any of their goals, the internationals need cooperation
by effective Kosovar political leaders. They fear that any serious
anti-corruption campaign would lead to the top. Whether or not this is true,
the fear leads them to under fund the anti-corruption resources that exist, and
to thwart anti-corruption investigations that appear likely to lead somewhere
significant. In their view, political corruption in Kosovo is not a priority
problem. At worst, it is a slowly developing cancer that will cause disaster
long after they have rotated to other positions in their professional lives.
Unlike the threat of interethnic violence or political chaos, it is not an
immediate threat to short term success or to their careers.

Worse than that, the few high profile corruption cases that
have come to light have involved, not senior Kosovar political leaders, but
senior officials of the UN civil administration. So a contributing factor to
the lack of political will is that a significant part of the civil
administration—the international civil administration—in Kosovo apparently has
a culture of corruption of its own.

The second precondition recognizes the importance of victims
of corruption being willing to report corruption. All the political will in the
world amounts to nothing if no participant is willing to report wrongdoing. Not
all participant reports are entirely voluntary, of course. The case studies in
§ III. B. show that, in most of the high profile U.S. cases, the crucial cooperation
from participants in corruption was obtained through coercion—threatening to
prosecute them. But the need for voluntary cooperation, including victim
reports, is essential in most cases because anti-corruption investigators need
to know where to direct their attention. If there is a complete conspiracy of
silence among perpetrators and victims of corruption, it will be difficult for
well founded suspicions to crystallize. Some victims of corruption, like
victims of almost any other crime, are motivated to seek justice due to the
damages they suffer; emotionally, financially, or otherwise. Victims balance
their desire to report wrongdoing, however, with the potential negative
consequences that are likely to arise by doing so.Many factors convince Kosovar victims of
corruption to remain silent depending on their circumstances. Officeholders may
fear becoming politically isolated and ostracized. Companies may fear a loss of
business, especially if much of their business activity comes from the
government. And on an individual level, political figures, and businessmen, as
well as everyday citizens may fear for their personal safety and that of their
families. It may be easy for victims of corruption to rationalize that if they
stay silent, their turn to benefit will come. This is especially true if they
conclude, based on their own experience, that they should be willing to pay a
bribe next time.

When victims of corruption analyze whether they will choose
to report wrongdoing, how they believe their grievances will be handled often
tips the scales in favor or against reporting the problem. If victims detect
apathy among political actors in the fight against corruption, they will be
deeply discouraged from speaking up and threatening the status quo. They risk
their future in exchange for no benefit either to themselves or their society.

Both a willingness by victims to report corruption and
political will are necessary in the creation and support of competent, honest,
and courageous investigation and prosecution resources, the third part of the
anti-corruption platform. In the absence of either, even the most dedicated,
competent, and resourceful investigator or prosecutor will become frustrated
and eventually give up.

Applying axiom number III.C.5 leads to the following conclusions regarding the
third precondition: Investigative resources should include a Kosovar version of
the United States’
Government Accountability Office (formerly the Government Accounting Office)
and FBI. The Kosovar version of the Government Accountability Office would be
responsible for government audits which the Kosovar version of the FBI could
utilize as leads for further investigation. These investigative resources would
then ideally work seamlessly with a competent, honest and courageous
prosecution.

The establishment of a special anti-corruption prosecutor
for Kosovo could be useful. Such an institution could be insulated from those centers
of political power that lack the political will—as long as the institution
could be linked to and supported by some center of political power that has the
political will. Designation of a special prosecution force could facilitate
recruitment of individual members of the investigation and prosecution teams
that have the requisite skills and personal qualities. A special prosecutor
could achieve the prominence and public respect necessary to make him or her an
influential political force in building public support. A special prosecutor
could not be effective, however, unless the office is given the resources and
the legal authority to proceed independently. “Watchdogs,” and “fact-finders,”
are mere window dressing if they depend on the regular investigative and
prosecutorial authorities to follow up. Insisting that accusations of
corruption be handled through regular institutional channels is a recipe for
inaction.

The effectiveness of adequate investigative and
prosecutorial institutions is supplemented through press reports, NGO
activities, and political-party initiatives. Achieving the goal of building
political will and popular support requires the concerted action by all
elements of political and civil society. Without the threat of prosecution and
legal punishment, however, anti-corruption efforts are about as intimidating as
a pit-bull without teeth. This is especially true for businessmen in private
industry and politicians in Kosovo’s current closed-list system of elections
who can rarely be harmed by the decision of Kosovo’s citizens to change their
vote.

The fourth precondition: the necessity of a competent,
honest, and courageous judiciary is the final link to an effective
anti-corruption effort. Imagine a Kosovo that has turned the corner on its
anti-corruption efforts. A strong political will is putting heat on corrupt
politicians to become more ethical and transparent. Government audit reports
indicate several ministries have misappropriated funds over the past fiscal
year. Picking up where the audit reports leave off, a Kosovar FBI investigates
the ministries rigorously. They wiretap phones, develop relationships with
informants, wire undercover agents and confidential informants, request search
warrants, and subpoena the personal financial information of those at the top
of the applicable ministries. Once enough evidence is gathered to make a case,
independent prosecutors charge and prosecute the accused with their crimes.
Judges, accepting bribes from the accused, or merely acting out personal and
political loyalties, disallow key evidence and the targets are declared not
guilty. Such a system would produce no more success than a system in which none
of the preconditions are present. Without a competent, honest, and courageous
judiciary, anti-corruption efforts are almost entirely in vain.

Judicial reform takes time and perseverance because it
requires inculcating a new professional culture for the judiciary, which, in
turn requires significant turnover in personnel. Establishing special judicial
bodies can sidestep some of the challenges in reforming the entire judiciary,
but special judicial bodies, especially if they utilize international judges,
can face legitimacy problems. Any opportunity for those investigated to claim
that they are being targeted for political reasons by outside forces undermines
the requisite political will and popular support for punishing them.

Development of any of the preconditions for a successful
anti-corruption campaign in Kosovo suffers from a lack of precision and sense
of priority in addressing different types of corruption.

“Corruption” is a vague concept that has been overused,
skewed, and distorted over time. Differing cultural perceptions of what is and
is not corrupt behavior exacerbates confusion surrounding the word. Robert
Neild’s definition, quoted earlier, is a good starting point: “The breaking by
public persons, for the sake of private financial or political gain, of the
rules of conduct in public affairs prevailing in a society in the period under
consideration.”[111]
This specific definition successfully molds broader definitions which simply
describe corruption as “immoral behavior” into a definition that is more useful
operationally. In addition to embracing Neild’s definition, it is crucial for
Kosovo to recognize that they have limited anti-corruption resources; resources
which need to be utilized wisely. For this reason, it is imperative that those
wishing to eradicate corruption’s corrosive effects learn which corrupt
practices are hurting society the most, and then prioritize their
anti-corruption efforts in a way that eliminates the most damaging corrupt
practices first.

Corruption is paradoxical in that it runs rampant in many
sectors of even the most advanced societies, and yet is a major factor in
crippling nations’ political and economic progress. The paradox is explained by
the simple realization that not all corruption is created equal: lying about a
rival political candidate’s position on an issue in order to attack a straw man
is corrupt and damaging to democratic politics, but not as corrupt and damaging
as buying votes. Buying votes is less corrupt and damaging than having one’s
political rival assassinated. Yet one can correctly claim to be fighting
political “corruption” by attacking the least damaging form.

This section distinguishes among different kinds of
corruption particularly relevant to Kosovo. Going in order from less harmful to
more harmful, it begins with the effect of a gray economy history, continuing
with tax evasion, bribery, procurement kickbacks and partnerships, and
embezzlement in order to identify the most debilitating forms of corruption.

If one accepts a definition of corruption in which anyone who
breaks the law for personal gain is corrupt, then everyone involved in Kosovo’s
pervasive and historic gray economy is corrupt. “Gray economy” in this context
refers to the flow of goods through illegitimate channels. The channels may be
illegitimate because they are unauthorized by the manufacturer or producer.[112]
They may be illegitimate because they bypass customs duties, sales taxes, and
municipal licensing requirements. Establishing and maintaining such channels
often involves bribing customs agents and other government employees.
Cigarettes and alcohol are commonly mentioned as products that are often
smuggled into other countries—including Kosovo. Other products such as jewelry,
electronics, and prescription medicine are less noted, but nonetheless frequently
smuggled as well due to their homogeneity in quality, but disparity in price
among various countries.

In understanding
whether Kosovo’s thriving gray economy is detrimental to Kosovo’s progress, it
is useful to put this activity in a “who wins and who loses” framework. For
example, suppose a Kosovar successfully smuggles Marlboro cigarettes into
Pristina and bribes various customs officials nominal amounts in order to do
so. Assume the going rate for a legitimate pack of cigarettes in Pristina is
one euro and the smuggler is able to sell one for fifty cents. When a Kosovar
customer decides to buy the discounted pack of cigarettes from the smuggler,
the customer wins, the customs officials win, and the smuggler wins. In
contrast, the government and perhaps the tobacco company lose, depending on
whetherthe cigarette retailers would
be able to sell the same number of cigarettes at one euro. (It is conceivable
that the tobacco company could win as well if more cigarettes are sold also at
the lower price. It is a matter of the price elasticity of demand for
cigarettes.) All three “winners” in
this scenario are likely to spend the money that they earned or saved on
productive resources within Kosovo’s private economy. The “losers” in this
scenario would be more likely to spend money outside of Kosovo (in the case of
the tobacco company), or channel the money to unproductive resources such as
palatial public offices, big homes, or personal bank accounts, given the
pervasiveness of other types of corruption and misuse of public funds.

This type of
corruption might actually stimulate economic growth and job creation, and
surely would redistribute income toward the economically disadvantaged —given
that the Kosovar customer saves on his purchase and low income people sell the
smuggled cigarettes on the streets. Or, consider street vendors and
kiosks or unlicensed minibuses operating on the streets of Kosovo cities. The
proprietors of such activities earn a modest living and also provide
inexpensive access to small-value retail items and to transportation around the
cities. If minibuses continue to operate after the fall of 2006, they would be
“corrupt” because the Pristina municipality has prohibited such activity.
Though justifications may exist for the prohibition, it is far from clear that
prosecuting them for their “corruption” would be socially beneficial. Indeed,
it might actually enhance corruption if they can avoid prosecution by paying
bribes to public officials.[113]

If Kosovo is to
get serious in an attack on corruption, bleaching the gray economy would not be
a good place to start.

Widespread tax
evasion in Kosovo is another formally corrupt activity that can be beneficial,
and at the very least less harmful than other forms of corruption. Tax evasion
can have a positive effect on society if the money not paid in taxes is
reinvested in local, productive assets instead of inefficient government
expenditures. Suppose an owner of a retail outlet forgoes paying VAT and
instead uses the money saved to expand his store or stock his shelves with more
or better merchandise. Whether this is harmful to the society depends on the
relative effects of the private investment by the retailer, compared with how
the same money would have been spent by the government. When government is
inefficient, corrupt, and skews its priorities toward perks for public
officials, the society may benefit from diversion of tax revenues into the
private sector. A society needs national resources to be in the hands of those
who will use them most efficiently toward society’s development. Tax evasion
should be low on the list of priorities in the fight against corruption.

In contrast to
the gray economy and tax evasion, bribery of senior officials (including
kickbacks) is a form of corruption that rarely is beneficial to society. Small
“facilitating” bribes to lower level officials, as in the prior example of a
smuggler bribing customs inspectors may be efficient. Bribery shows its ugly
face when a small, non-representative sample of the population offers items of
substantial value to public persons in power to create policy, circumvent laws,
or otherwise induce the public figure to do something he or she would not have
otherwise done which is not in the public’s interest.

When combating
corruption with limited resources in Kosovo, it is desirable to turn a blind
eye to corruption at the low levels of society and focus on the upper realms of
society. Having customs officials and clerks taking bribes is much less harmful
than having public ministers, or heads of political parties, accepting bribes.

Particularly
relevant to Kosovo today is bribery in the form of procurement kickbacks and
partnerships. Although Kosovo is in transition to a private economy, some 65%
of Kosovo’s GDP still comes from the public sector.[114]
Many large contracts are awarded through the power vested in government
employees and are subject to the temptations of kickbacks and illicit
partnerships. Suppose two private asphalt firms bid on a tender by the Ministry
of Transportation. Furthermore, suppose that Company A offers better quality
and price, and would win the tender in a fair and objective bidding process.
Knowing this, Company B offers the Minister a ten percent kickback in the value
of the contract to be wired to his personal bank account when the contract is
awarded. Again it helps to evaluate this scenario in a “winner-loser
framework.” Company B and the Ministry win, while Company A, the morale of
honest employees of the ministry, and the public (through an inferior highway)
lose. The resulting harm of the corruption is lessened or magnified according
to the actual gap in asphalt quality and price between Company A and Company B.
Very often, companies who offer procurement kickbacks and illicit partnerships
to obtain contracts are so inefficient and unaccountable that the money spent
by the government is completely wasted—as if no asphalt were delivered at all.

One type of
corruption that offers no redeeming qualities is embezzlement.Individuals’ stealing government funds
directly is a form of corruption that can be absolutely crippling to a society,
depending on how much is stolen.Not
only does embezzled money not get spent on its intended purpose, but also,
money embezzled by government officials oftentimes goes directly into secret
foreign back accounts and is later spent outside of the country instead being
reinvested, however inefficiently, within the country.Embezzlement in a capitalist economy is
especially malignant because, unlike cigarette smuggling, it shifts income to
the already privileged rather than to the disadvantaged.

An effective
anti-corruption campaign in Kosovo must pick the right targets. The temptation
is high to focus on petty corruption; that poses the least risks to business
and political elites. The most damaging types of corruption like embezzlement,
kickbacks, and bribery occur at the highest levels of government. That is where
anti-corruption campaigns should focus. To spend limited anti-corruption
resources on anything else is distracting and wasteful.

This section builds on the information and arguments
developed in earlier sections to propose the elements of an anti-corruption
strategy for Kosovo that has the best prospects for success. It begins by postulating
crucial indicia of success, and then reviews how the preconditions for success
can be sought, and how investigative and prosecutorial resources best can be
organized, drawing upon the best practices considered in § III.

One of the pervasive problems in evaluating anti-corruption
campaigns in any society is how to determine if they have been successful and
whether they were serious in the first place. When broad public concern about
public corruption exists, it is easy for public officials and political
candidates to promise to root out corruption, even when they have no serious
intent of doing so. Indeed, they may often be corrupt themselves, and surely
not desirous of exposing and prosecuting their own corruption or that of their
supporters. The same thing is true in Kosovo. Political dialogue rings out with
accusations of corruption and promises to expose it.

Accordingly, any serious anti-corruption effort in Kosovo
and those interested in it must have some relatively straightforward measure of
success. Simple measures are not hard to identify. Any serious anti-corruption
campaign should result in the prosecution and conviction of at least one high
level public or party official, and at least one significant businessman, early—say
within a year and a half or so—of Kosovo’s independence.

If neither of these things happens, two possible
explanations exist: there is no high level corruption in Kosovo, or the four
preconditions for successful anti-corruption efforts do not exist.

It is implausible in the extreme that no high level public
corruption exists in Kosovo. Where there is smoke there is fire, and there is a
lot of smoke in Kosovo. Not only that, but the conditions in Kosovo, as
explained in § IV. A. and § IV. B., are conducive to high level corruption.
Accordingly, this explanation for the absence of high profile investigations,
prosecutions, and convictions can be attributed to the absence of other
preconditions: public will, victim reporting, committed and honest investigators
and prosecutors, and a competent, honest, and fearless judiciary. If the
political will exists, everything else will fall in line or be exposed
publicly. For example, if top political leadership wants to investigate high
level corruption and discovers that its investigative and prosecutorial
resources are inadequate to do so, it can obtain outside help in training or
recruiting such resources. If the high level political will exists, but there
is a paucity of victim reports, informers can be recruited through an ABSCAM
like front. If the other preconditions exist but are thwarted by a failed
judiciary, the problem will be evident for everyone to see: prosecution of high
level officials would be brought, but the courts would acquit them.

The assessment of priorities and the deployment of resources
benefits from having a concrete factual context within which to consider them.
This subsection offers four hypothetical examples of corrupt activities likely
to be going on in Kosovo now.

Two companies are engaged in the bidding process for this
year’s highway improvement program largely effectuated by public tenders at the
national and municipal levels. Company A consistently delivers a quality
product at a reasonable price. On the other hand, Company B is known to
under-deliver on its relatively expensive previous government contracts. The
tender process is long and arduous, but after the process is complete, Company
A rightfully wins the highway contract.

The majority owner of Company B is also the owner of a
private local university which has supplied the Ministry of Transportation,
along with various other ministries, graduates with close personal connections
to the owner. As a result of these close personal ties, the owner of Company B
is able to bribe certain individuals in the Ministry to nullify the decision
and ask the companies to resubmit their proposals under different criteria;
criteria more favorable to Company B. The owner of Company B offers a 10%
kickback on the contract to those in the Ministry responsible for causing the
re-evaluation and eventual granting of the contract to Company B.

Quality electronic surveillance would be crucial to proving
this type of corruption. Before electronic surveillance can be a part of an
investigation, however, informant type relationships with individuals on the
inside of the ministry must be developed over time. These informants can be
motivated by civic duty, anger at others on the inside, or simply by the thrill
of performing undercover work. Some of these informants may turn into
cooperating witnesses; witnesses that will wear a wire and get others to say
incriminating things on tape. If the transaction is particularly sloppy, and
officials immediately deposit funds they were bribed within their bank
accounts, then those records can also be subpoenaed to corroborate the
wrongdoing that electronic surveillance and cooperating witness testimony
suggest.

In a variant of the preceding hypothetical, the successful
bidder, Company A, is approached by a high level ministry official—or more
likely an intermediary acting on behalf of the official—and told that the
project will be rebid under different conditions unless the successful bidder
agrees to make a substantial contribution to a charitable or political fund of the
leader of the minister’s party. This type of corruption would be just as
harmful as the type described in the preceding hypothetical, but it would be
more difficult to investigate and prove. Political and charitable contributions
are entirely legal, unlike bribes paid to public officials. The conduct is
corrupt only if there is a cause-and-effect linkage between the contribution
and a decision by a public official.

In this hypothetical an investigation might well begin by
“following the money.” Lists of contributors to the party or charitable fund
would be compared with lists of recipients of public contracts. Inferences
drawn from matches and the temporal proximity of contributions and contracts
would be used to develop targets for further investigation. This initial
investigative step would be fruitful only if the identity of recipients of
public contracts is public and if political and charitable contributions are
transparent—at least to the extent of revealing the actual identity of
contributors. Transparency requirements should not be limited only to campaign
funds, but should also include other types of funds closely identified with
public officials and party leaders.

Once such targets are developed, the same kind of success in
developing informants, obtaining testimony, and electronic surveillance results
would be necessary as in other examples of corruption.

What distinguishes this scenario from the other bribery
hypotheticals is the directness of the path from the briber to the bribe
recipient.

When bribes benefit public officials directly, they open a
new avenue for investigation. The starting point is to compare the public
salaries and other disclosed income of the public official with the public
official’s lifestyle and expenditures. A thoroughly corrupt public official
will spend more money or have more money in the bank than he or she
acknowledges receiving from legitimate sources. When such a gap exists, that
public official becomes an obvious target for further investigation employing
the same methods of informant recruitment and electronic surveillance as in the
other examples. For this strategy to work, however, Kosovar law must require
financial reporting by public officials, including the identification of major
assets, including bank accounts, and the disclosure of any sources of income
other than government salaries.[115]

A government official does not want a new hospital built in
Kosovo in a specific region because he is a partner in a private firm working
to develop luxury offices and condominiums in the exact location of the planned
hospital. The hospital will service thousands of needy Kosovars since the
healthcare system in Kosovo is lacking funds, energy and resources. The
government official steers public contracts to the developer of the hospital to
cancel the plans by creating the excuse that the hospital is infeasible in this
particular area, leaving the space free to the official and his development group
to build upon. No alternate space is found for the hospital and, as a result,
thousands of Kosovars will suffer and will not be provided adequate care in
this region.

In order to crack this case, the focus should be on the
victim—the hospital. Officials and employees who favored construction of the
hospital have an incentive to report the corruption that thwarted their plans,
and whether they will do so depends upon the overall climate for victim
reporting. Assuming they arewilling to
complain of suspected corruption, they still may not know much about what
happened. The public official, the contractor and top officials of the hospital
hardly have an incentive to tell how they have thwarted the plans of the
hospital’s professional staff. But the hospital staff may know a substantial
amount about construction plans and plans for the alternative development of
its chosen site. This information could be essential in helping the
investigators figure out whom to target in recruiting informants, and what to look
for in financial investigations and eavesdropping.

An important priority in combating corruption is the
creation of political will through public outrage directed at corrupt
officials. Public outrage is necessary to disrupt the political complacency
that may develop from a public perception that corruption is rampant and
relatively benign.

One way to cultivate public outrage is to find a
relationship whereby a corrupt official is either directly or incidentally
involved in a serious criminal enterprise via his or her public office. For
example, a public official may be taking bribes from a criminal involved in
human trafficking or the drug trade in exchange for a service that is used by
the criminal to further the illegal activity. It is important that the criminal
be involved in some sort of repulsive criminal activity, such as human
trafficking or murder, in order to elicit a strong public reaction. If some
connection could be drawn between the corruption and criminal activities that
directly affect Kosovars, the public reaction would be even stronger.

Once the public is made aware that corruption can lead to
the commission of such serious crimes, then there will be stronger public
support for the kind of anti-corruption measures that are necessary. The public
will demand increased resources and aggressiveness from the prosecutors in the
field of public corruption. As a result, many corrupt officials will reform
themselves in order to avoid the scrutiny of the newly reinvigorated
prosecutors and investigations. Those officials who do not reform themselves
will find continuing their operations more difficult and, hopefully, many will
find themselves as the subjects of indictments and convictions.

As § IV.C. argues, some forms of corruption are more
damaging than others. To Kosovar society, no single practice of corruption may
be more crippling to the economy than the practice of government officials
doling out government contracts based on kickbacks rather than fair and
objective processes. This practice is widespread and pervasive among government
officials and businessmen. Those guilty of this type of corruption often may be
indiscreet as they have little fear of legal remedies being brought against
them.

As Kosovo’s public grows cynical, investigating and
prosecuting at least one high-level offender in both the public (government
official) and private (businessman) domain becomes an immediate objective.
Gathering evidence for an investigation could take many forms. Completed audit
reports, which indicate misappropriation of assets at various levels of many of
the ministries, are an excellent indicator showing investigators where to dig
deeper.

An investigator’s first steps in collecting evidence should
be developing informants, and perhaps even cooperating witnesses in the
ministries they wish to investigate. Assuming investigators have sufficient
resources and authority, the next step is acquiring evidence through electronic
surveillance. After enough incriminating evidence is collected by these means,
charges should be brought, and the matter sent to the courts.

Going after a high-level official and businessman is a
priority for two main reasons: (1) it will discourage corrupt behavior at the
higher levels of government, where it does the most damage and; (2) it keeps
the public eye focused on corruption and its ill effects on society, helping
fuel an anti-corruption culture amongst Kosovars.

Political will to investigate and prosecute public
corruption begins with individuals in positions of influence in the political
system. They may be party leaders, public office holders, candidates for public
office, public prosecutors, or journalists.

The central question for Kosovo is: who can advance his or
her political goals by getting serious about corruption, being committed to
expose it, and insisting on its prosecution? Various goals may be operative in
this context: obtaining enhanced power and status; obtaining control of public
funds to reward supporters or for personal gain; implementation of a
policy-oriented program.

Most present political elites in Kosovo benefit from the
status quo, and have shown no inclination to expose public corruption (Thaçi
and the PDK may be an exception, although it is not clear how serious the PDK
“dossier” on governmental corruption is; it may be an overly general claim that
PDK opponents should be turned out of office.)

Accordingly, it is likely that some new face is needed to
raise visibility of the issue, to demonstrate a commitment to take effective
action, and along with it, to advance the actor’s career. An Elliott Spitzer,
Patrick Fitzgerald, Bob Woodward or—two generations earlier—Drew Pearson, or a
legally trained Albin Kurti—is urgently needed.

The conditions must be such that an ambitious, courageous,
effective person sees successful prosecution of corruption as a way of rising
from obscurity to fame.

The Watergate case shows the need for a special prosecutor
beyond the usual control of a department or Ministry of Justice. All of the U.S.
case studies show the need for a prosecutor of public corruption who is beyond
the control of the public officials targeted in the investigation. The U.S.
statutory framework for a special prosecutor—renamed “independent counsel”—is
worthy of consideration for Kosovo.

The statutory authorization for the predecessor office to
the independent counsel was created in response to the Watergate scandal in
1978[116]
and consequently expired in 1999.[117]
The statute authorized the Attorney General (AG) to conduct preliminary
investigations of numerous high level officials in the Executive Branch
including the President and Vice President, provided the AG had sufficient
information to constitute grounds for investigation.[118]
If, after the initial investigation, the AG decides that there are no grounds
for further investigation, then the investigation ends and there can be no
appointment of an independent counsel.[119]
If the AG determines that further investigation is warranted, then the AG
applies to the division of the court for an independent counsel.[120]
A request for an investigation can also come from the Committee on the
Judiciary of either house of Congress, and in these situations the AG must
report to the committee on the status of the preliminary investigation as well
as the necessity of an investigation by an independent counsel.[121]
A panel of three judges designated by the Chief Justice of the United States[122]
then appoints an independent counsel and defines the counsel’s prosecutorial
jurisdiction.[123] The
judicial panel can also expand the jurisdiction at the request of the AG.[124]
If, upon recommendation by the independent counsel, the AG determines that
there are no reasonable grounds for further investigation, then the AG shall
inform the division of the court and terminate the investigation.[125]

The independent counsel has full power and independent
authority to exercise all investigative and prosecutorial functions and powers
of the Department of Justice.[126]
The independent counsel must provide the judicial panel with a report every six
months which identifies and explains all expenses. Prior to the termination of
the investigation he must provide a report fully describing the independent
counsel’s work.[127]
Congress has oversight jurisdiction with respect to the official conduct of the
independent counsel and the independent counsel must provide an annual report
to Congress describing the progress of any investigations or prosecutions.[128]
Both the independent counsel and the judicial panel have the authority to
terminate the investigation when either body determines that the investigation
has been completed.[129]
The independent counsel may be removed from office only by the AG, and only as
a result of some condition that substantially impairs the independent counsel’s
ability to carry out his or her duties.[130]
The independent counsel may obtain judicial review of any such removal.[131]

Prior to the adoption of the independent counsel legislation
by Congress, there had been three instances in American history where special
prosecutors had been utilized:[132]
the Watergate scandal, the Tea Pot Dome scandal, and the tax scandal of the
1950s.[133] The
problem with the earlier arrangement that motivated Congress to develop a
statutory solution was the President’s power to fire the special prosecutor.[134]
This result occurred in both the Watergate scandal and the tax scandal of the
1950s.[135]

Over the course of the independent counsel’s statutory life
there were three re-authorizations that tinkered with the role of the AG in the
process, but the overriding focus on an independent body to investigate
executive misdeeds remained.[136]
In that time there were twenty-one independent counsel investigations for which
the costs exceeded $166 million.[137]
Fewer than half of the investigations led to convictions,[138]
and those that did were criticized for being too expensive and time-consuming.[139]
Other critics of the statute contended that it was unconstitutional, saying
that it deprives the President of a purely executive activity.[140]
Eventually both parties became disillusioned with the statute, and they let it
expire in 1999.[141]

Creating a similar office of independent counsel or special
prosecutor in Kosovo would be difficult under the current political
arrangement. The driving force behind the adoption of the independent counsel
statute was a public mistrust in the executive to police itself effectively and
honestly.[142] There
is ample justification for such mistrust in Kosovo. The current Prime Minister
Agim Ceku came to office promising to clean house amid accusations that several
ministers of the government were corrupt. After the leader of the political
party sponsoring him declared that all ministers should retain their posts,
however, he backed away from his promise to clean house and had made no changes
in ministerial personnel even after the 100 days he had promised himself to
decide what ministers should remain and what ministers should go. Organizing a
special prosecutor or an independent counsel in Kosovo is more difficult than
in the United States because
of the inherent differences between a presidential system of government as in
the United States,
compared with a parliamentary system, as in Kosovo. In the United States, the independent
Congress and judiciary can, given sufficient determination to do so,
investigate the executive. In Kosovo the executive and the legislative majority
are indistinguishable; the government gets selected because a legislative
majority sponsors it.[143]
Moreover, the judiciary in Kosovo is not as independent of the legislative and
executive branches as it is in the United States. Much of the
independence of the U.S.
judicial is the product of political culture, and longstanding high status for
federal judges, rather than a product of formal laws. The judiciary is not
formally independent under the existing constitutional framework in Kosovo.
Judges are appointed and dismissed by the SRSG, who also exercises ultimate
executive and legislative authority. Guaranteeing judicial independence is an
important priority for drafters of a new Kosovo constitution and for designers
of any international role in governing an independent Kosovo.

Many plausible constitutional structures could allow for an
independent prosecutor. The parliamentary majority conceivably could insist
upon the appointment of an independent prosecutor as the price for not adopting
a vote of no confidence against the government. Or the parliamentary opposition
could create so much public pressure against the government that the government
is forced defensively to create an independent prosecutor, just as President
Nixon was forced to create the special prosecutor office by pressure from a
Congress controlled by the opposition party and from the public.

Appendix II provides a draft job description for a Kosovo
special prosecutor.

All of the case studies show that informants, cooperating
witnesses, and undercover agents are necessary in a successful investigation of
public corruption. The axioms postulate such necessity explicitly. This section
considers whether the legal framework in Kosovo is adequate, in comparison to
the legal framework in the United
States for such investigative resources to
be recruited and deployed.

In Kosovo, a simulated purchase of an item or a simulation
of a corruption offense for the purpose of collecting evidence for a criminal
investigation can be performed or directed by a duly authorized judicial police
officer if two preconditions have been met.[144]
First, there must be a grounded suspicion that the person has committed, or
attempted to commit, a criminal offense punishable by at least four years in
prison, or one or more of a list of seventeen crimes including forgery of
documents and money, unjustified acceptance of gifts, unjustified giving of
gifts, trading in influence, criminal association, accepting bribes, and giving
bribes.[145] Second,
“the information that could be obtained by the measure…would be likely to
assist in the investigation of the criminal offense and would be unlikely to be
obtained by any other investigative action without unreasonable difficulty or
potential danger to others.”[146]A
roadblock to utilizing these investigative measures is the requirement of a
judicial order.[147]
The order is issued by a pre-trial judge upon the basis of an application by a
public prosecutor.[148]
A public prosecutor can issue a provisional order in emergency cases when the
delay resulting from an issuance by a pre-trial judge would jeopardize the
security of the investigation or the life and safety of a party connected to
the investigation.[149]
Such a provisional order has effect for only twenty-four hours without the
confirmation of a pre-trial judge.[150]

The order shall only authorize a single simulated purchase
or corruption offense.[151]
A further order may be issued if the preconditions necessary to issue an order
still exist, and “there is a reasonable explanation of the failure to obtain
some or all of the information sought under the earlier order.”[152]
When implementing this order the informant cannot commit a criminal offense or
incite another person to commit a criminal offense that he or she would not
have committed.[153]
If at any point the preconditions for issuing an order cease to apply, an
authorized judicial officer may terminate the order.[154]
If a person believes that he or she has been the subject of an unlawful
measure, that person can submit a complaint through the Head of the competent
public entity to the Surveillance and Investigation Review Panel.[155]
The Review Panel adjudicates the complaint and decides on compensation where
appropriate.[156]

In exceptional circumstances a pre-trial judge may, upon application
of the public prosecutor, order that any information or data in the collected
materials that could be used to identify the informant be expunged or omitted,
or that records in the materials not be disclosed.[157]
The exceptional circumstances exist when the evidence is not deemed exculpatory
and revealing those items would jeopardize the investigation or the life and
safety of the informant or the informant’s family.[158]

The rules governing the use of undercover investigative
procedures other than a simulated purchase of an item or a simulation of a
corruption offense are less stringent because an order for an undercover
investigation is issued by a public prosecutor instead of a pre-trial judge.[159]
One of the significant differences between this and the U.S. system is that approval power in the U.S.
is divided between the FBI Special Agent in Charge and FBI headquarters
depending on the circumstances.[160]
Authorization from headquarters is necessary when the operation will incur
substantial financial costs or involve sensitive circumstances including the
investigation of public officials.[161]
Again, undercover investigations in the U.S. can include engaging in
otherwise unlawful activity with proper authorization,[162]
while an undercover Kosovar cannot.[163]

The Criminal Procedure Code of Kosovo does not address
confidential informants. In the U.S.,
the Attorney General has created guidelines that provide procedure for the use
of confidential informants.[164]
A law enforcement agency in the U.S.
must submit an Initial Suitability Report prior to utilizing a person as a
confidential informant.[165]
This report must address a number of factors including the informant’s age,
motivation, reliability, and history of substance abuse.[166]
The law enforcement agency must take the utmost care not to disclose
information about the investigation to the informant.[167]
At the same time, the informant’s identity is to be protected along with the
information provided by the informant.[168]

Members of the Kosovar-Albanian diaspora may be good possibilities
for recruitment as undercover agents or informants because they face less
physical risk; they are already “relocated.” Obviously they would not be
effective if they were to operate outside Kosovo, but their ties to Kosovo and
their shared culture could make them effective if they stay in Kosovo for the
duration of an investigation and then return to another country after the
investigation is complete. While the Albanian diaspora certainly should be
considered as a pool for possible recruitment of informants or undercover
agents, certain realities may limit its potential. Members of the diaspora
already involved in business or political activities in Kosovo, and therefore
likely to be already trusted and knowledgeable about corruption, have no more
incentive to betray their associates than do similarly situated people inside
Kosovo. Of course, just as people fall out with their associates or are
disappointed about lost business opportunities inside Kosovo, the same thing
may happen to a member of the diaspora. A member of the diaspora in such
circumstances is a better target to become an informant or undercover operative
because the diaspora member does not have to stay in Kosovo and bear the
consequences of his cooperation.

Members of the diaspora who are not presently involved in
business or political activities in Kosovo offer only a marginal advantage over
any other outsider. Were they suddenly to show up and try to get close to a
political or business figure inside Kosovo, they likely would come under
immediate suspicion. On the other hand, the energetic effort by Kosovars to
attract foreign investment, and the modest success of this effort so far, will
create the conditions for several years in which a member of the diaspora could
show up under cover of having been recently persuaded to invest in Kosovo.

The Provisional Criminal Procedure Code of Kosovo defines a
cooperating witness as a suspect or defendant who is expected to voluntarily
testify truthfully in court, and whose testimony is “likely to prevent further
criminal offenses by another person and likely to lead to the findings of truth
in criminal proceedings, such that it might lead to a successful prosecution of
other perpetrators of a criminal offense.”[169]
Upon a written application by the public prosecutor,[170]
the pre-trial or presiding judge may convene a closed hearing to decide whether
to issue an order declaring the person to be a cooperating witness.[171]
The judge’s order must specify the criminal offenses, from which the witness is
immunized, the punishment the witness will receive for the remaining offenses,
the nature and substance of cooperation given by the witness, and the
conditions for revocation of the order.[172]
If the witness gives false testimony, the order may be revoked by a three-judge
panel.[173] A
cooperating witness could also be utilized as an informant so long as the
witness is operating under the supervision of a duly authorized judicial police
officer.[174]

All of the case studies show the essentiality of electronic
surveillance, and one of the axioms asserts such explicitly. The availability
of electronic surveillance in Kosovo, accordingly, is an essential part of any
effective campaign to combat public corruption. Its availability depends upon
the legal requirements for its use, and the technical capacity to deploy the
necessary technology, assuming of course, the willingness of informants or
undercover agents to participate in wearing a wire or recording telephone
conversations when surveillance other than traditional wiretaps are
contemplated.

According to UNMIK regulations, interception of
telecommunications or communications by a computer network may be ordered
against a certain individual if 1) certain facts substantiate that the suspect
has committed a criminal offense punishable by more than four years or
committed one of a list of eleven offenses; and 2) the information that could
be obtained by this measure would be likely to assist in the investigation, and
would be unlikely to be obtained by any other measure without unreasonable
difficulty or potential danger to others.[175]
This order must be issued by an investigating judge in response to an
application by a public prosecutor.[176]
This application must include a complete statement of the facts relied upon to
form the belief that the requisite crime has been committed and that there is
no other adequate way to procure the information.[177]
In emergency cases, the prosecutor may issue a provisional order that will
cease to have effect if it is not confirmed by an investigative judge within
three days of issuance.[178]
The order must be carried out in such a way as to minimize the interception of
information that is not included in the order.[179]
Also, once the conditions for the issuing of the order cease to apply, then
implementation of the order must be suspended.[180]
The order may be issued against anyone suspected of communicating with the
suspect, or anyone who possesses a telephone or computer that the suspect is
thought to have used.[181]

The main difference between the wiretapping laws in Kosovo
and the U.S.
is that the pool of possible subjects of wiretapping is greater in the U.S.
Wiretapping can be authorized in Kosovo only against people who are suspected
of having already committed a crime.[182]
In the U.S.,
it is enough if a judge determines that there is probable cause to believe that
the suspect has or will commit a
crime.[183]

Orders for body wires and telephone conversations do not
require judicial approval in Kosovo where one of the parties has consented to
the surveillance.[184]
The general rule is that in order to engage in forms of electronic surveillance
where none of the parties consent, the order must be issued by a pre-trial judge.[185]
An exception is made for covert monitoring of conversations in public places,
where authorization can come from a public prosecutor.[186]
Another exception is made in emergency cases where the delay that would result
from a pre-trial judge issuing an order would threaten the investigation or a
party involved in the investigation.[187]
In these circumstances, a public prosecutor may issue a provisional order that
will cease to have effect if it is not confirmed by a pre-trial judge within
twenty-four hours.[188]

In the U.S.,
judicial approval is not necessary in order to intercept wire, oral, or
electronic communications when one of the parties has either consented to the
interception or is a law enforcement officer.[189]
If none of the parties has consented to the interception, then judicial
authorization is necessary.[190]
An interception with none of the parties consenting can be authorized by a law
enforcement officer without judicial approval in emergency situations.[191]
The emergency situation exists when there is an immediate danger of death or
physical injury to any person, conspiratorial activities threatening national
security, or conspiratorial activities characteristic of organized crime.[192]
The law enforcement officer must then apply for judicial authorization within
forty-eight hours of the interception.[193]
The U.S.
and Kosovo procedures seem to be largely identical.

In the United
States, the Government Accountability Office
provides resources to members of Congress to investigate performance of public
duties by agencies and agency officials. Its authority and activities extend
beyond public corruption to the effectiveness of governmental activities. The
Office of Inspector General within most governmental agencies performs a
similar function, also not limited to allegations of corruption. Similar
authorities in Kosovo can be a useful part of the overall anti-corruption
effort, but they are insufficient in the absence of the other preconditions for
success. Moreover, they are entirely useless unless they have the authority and
do in fact report their conclusions directly to the public without the
possibility of their being censored or entirely suppressed by the government.

The Kosovo Auditor-General’s (AG)
primary responsibility is to perform annual regulatory audits of numerous
publicly-funded institutions.[194]
The AG may also perform regulatory and performance audits at the behest of the
Assembly.[195] A
regulatory audit is primarily concerned with identifying potential wrongdoing,
while a performance audit is an audit of the efficiency and effectiveness with
which the institution manages its resources in carrying out its responsibilities.[196]
While the current AG is appointed by the SRSG,[197]
the AG will become a fully localized institution based upon a plan created by
the AG and approved by the SRSG to finalize appointment procedures.[198]
The AG has the power to compel production of all information and documents it
desires.[199] The AG
is also free to create its own standards and procedures, so long as they comply
with the International Standards of Auditing.[200]

The only two significant
differences between the U.S. Government Accountability Office and the Audit
Office of Kosovo are the authority to initiate an audit and the breadth of
subjects covered in a report. The Auditor-General can only initiate an audit if
it is one of the annual audits required by the statute, or if it is requested
by the Assembly.[201]

The Comptroller General (who heads
the GAO), on the other hand, can perform an investigation into the use of
public money on his/her own initiative.[202]
Also, the AG’s annual reports are regulatory audits,[203]
and these audits do not address the efficiency and effectiveness with which the
audited institution uses and manages its resources.[204]
A performance audit that focuses upon those neglected issues can be requested
by the Assembly,[205]
but cannot be performed without a request.[206]
The Comptroller General, on the other hand, is required to comment on the
efficiency of the institution as part of the annual report.[207]

The Kosovo Anti-Corruption
Agency’s (Agency) primary responsibilities are to conduct administrative
investigations into corruption,[208]
forward criminal cases of corruption to the prosecutor,[209]
and participate in the process of designing legislation and policy to combat
corruption.[210] All
public bodies, local authorities, and official persons are required to provide
the Agency with all the information and documents that are requested of them.[211]
The director of the Agency is selected by the Assembly from two candidates
recommended by an Agency Council.[212]
The Agency Council is primarily comprised of representatives from various
government organizations.[213]
The Agency does not interact much with prosecutors, except to forward cases
involving criminal corruption to them.[214]

One difference between the Agency
and the Inspector General (IG) is that the Agency focuses on legislation that
directly addresses corruption,[215]
while the IG reviews all legislation with a focus on how it will affect
corruption.[216] This
distinction exists on a more general level as well. The focus on corruption is
an outgrowth of the IG’s responsibilities in regard to the effective and
efficient administration of the laws, rather than its main objective.[217]
The Agency, on the other hand, has anti-corruption as its main objective.[218]
Another distinction is that the appointment of the director is directly
influenced by a larger pool of people. The Assembly chooses from two candidates
that were selected by the Agency Council.[219]
The Senate, on the other hand, addresses one candidate who was selected by the
President.[220]

“Hotlines” are special telephone numbers that persons can
call, or e-mail addresses to which they can send e-mails, to report misconduct,
including corruption. Such hotlines are believed to encourage reports from victims
and others fearing retribution because they can do so anonymously. Hotlines
generate a large amount of extraneous information and are useful only if the
resources exist for careful screening of accusations delivered via hotline.
Moreover, citizens with information about corrupt activities to report may be
reluctant to use the hotlines if they believe that the agency sponsoring them
has itself been corrupted. Whether or not it is so, most people believe that
even anonymous calls and emails can be traced to them.

Around the world many other anti-corruption hotlines exist
and function to aid organizations and governments.The federal government of Nigeria in its Ministry of Finance
is an example of a functioning hotline.Citizens in businesses are asked to use the telephone hotline or the
free and anonymous email service to report evidence of corruption in their
respective industries.[221]

The United
States has many corruption hotline services
in most branches of the federal government. The hotline of the Immigrations and
Customs Enforcement Bureau (ICE) plays an important role in combating human
trafficking. The ICE has set up a hotline for victims of trafficking to report
their incidents. Through this hotline, NGOs are able to communicate with the
ICE victim witness program in order to provide funding to the witnesses. No
information was given regarding the efficiency of the hotline.[222]

UNMIK has created an anti-corruption hotline program to help
promote its anti-corruption campaign in Kosovo. The hotline is used to measure
the number of reported cases, and then to evaluate the types of corruption
reported, defining what corruption is most prevalent in Kosovo. Any citizen of
Kosovo, or member of the world, can dial this number or send an email from the
UNMIK website under the heading “corruption hotline.” Currently, UNMIK operates
a customs hotline to report smuggling or corruption. The hotline can be reached
at the number +381/038/540 350. A person can also report corruption at the
website www.unmikcustom.org.[223]

Witness protection determinations in Kosovo are made by the
court upon a written petition filed by the witness’ counsel.[224]
An order for a protective measure or anonymity is proper when the court
determines that a serious risk to the witness or the witness’ family member
exists, and the protective measure is necessary to prevent that risk.[225]
The protective measure to be employed is left to the court’s discretion, but
the regulation does list a number of protective measures.[226]
If ordinary protective measures prove to be insufficient to guarantee
protection, the court can, in these exceptional circumstances, order that the
witness remain anonymous to the public.[227]
In these cases, the court holds a hearing in a closed session where it assesses
the risk, the interests of the public and other parties, the importance of the
testimony, and the credibility of the witness before making a decision.[228]
If the court issues such an order, that witness will remain anonymous to the
public and to the opposing parties and counsel.[229]

The witness protection program in Kosovo differs from that
in the U.S.
in three major respects. First, the determination regarding witness protection
is made by a Kosovo court,[230]
while it is made by the Attorney General in the U.S.[231]
Second, witness protection is available to all witnesses in Kosovo,[232]
while it is available only to witnesses for the government in cases of
organized crime or other serious offenses in the U.S.[233]
Third, despite a broad mandate for Kosovar judges to take whatever steps
necessary to protect the witness and his/her family, the measures contemplated
by the statute do not address any form of witness relocation,[234]
while the U.S. statute identifies relocation as the primary form of witness
protection.[235]

Statutory authority is hardly the most important aspect of
an effective witness protection program, as earlier parts of this report have
explained. A large working part of any witness protection program is witness
relocation. In the United
States, witnesses that partake of this
service are often reluctant to relocate to another state or city and often stay
in their targeted danger zone. In Kosovo the same reluctance to relocate exists
and is more complicated because of ethnic, cultural, and language issues.

Family is the most prominent factor that makes relocation of
witnesses difficult. In the US
and in Kosovo witnesses are often unwilling to give up all contact with their
families and create a new life under a new identity and family name. If they
choose to relocate, witnesses must cut off all ties with family members other
than those they are living with and must not return to their old homes or
targeted areas. The only people who do not have as much difficulty with breaking
all familial ties are those who were estranged or isolated from family and
friends before the incidence of relocation.

In Kosovo ethnic and cultural ties play a more prominent
role in the reluctance to relocate. Kosovars would not be able to relocate to
areas within the similar cultural region, leaving them isolated from old
customs and traditions. Also, Kosovars cannot relocate to a place that is
heavily populated by their same ethnicity because of anonymity reasons and ties
to their homeland. Thus, the ideal place for a Kosovar witness to relocate to
would be one of completely different, cultural, ethnic, and racial background,
for example Japan
would be perfect.

This relocation to a completely new area raises language
issues. Kosovars would have to learn a completely new language. Many of them
are uneducated in the first place, and the burden of adapting to new
surroundings would only be heavier with the addition of learning a new
language.

Another factor that is unique to the Kosovo situation is the
strong determination to remain home. If Kosovars had wanted to escape or
relocate, they would have done so during the war when they were being forced
out of Kosovo.Additionally, fear of the
unusual or new surroundings tends to overwhelm Kosovars more so than their fear
of their perpetrators.Thus, the witness
relocation program must take these factors into consideration before creating a
comprehensive and workable program.

Earlier parts of this
report also have made the point that witness relocation programs, like witness
protection programs of any form, are extremely expensive. To derive an estimate
for the cost of a U.S.-style witness protection program in Kosovo, one can take
the 1997 U.S. Budget for witness protection of some $61.8 million, and ratio it
by a fraction comprising the population of Kosovo (2 million) with the U.S.
population (3 million), which results in a Kosovo witness protection budget in
excess $400,000.[236]

Large scale corruption often is exposed first, not by
government officials, but by journalists—sometimes acting on tips from lower
level prosecutorial or law enforcement personnel who are frustrated because
higher-level officials lack the political will to investigate and prosecute
public corruption vigorously.

Prosecutors report to some branch of government; they depend
on the government to pay their salaries and provide them with resources.
Journalists do not; as a consequence, journalists are harder to intimidate
economically and harder to starve into submission by denying them resources.
Kosovo also has an abundance of journalists, serving nine major newspapers,
three national television outlets, four major radio stations and Internet sites
too numerous to count.

Nurturing investigative journalists in Kosovo is an
important part of any effective anti-corruption initiative. They need moral
support from their organizations, willingness by their editors to put their
stories in the paper or on the air, and training about the investigative
techniques most likely to unearth evidence of corruption.

As § III. B. explained, social norms are as important as law
in determining whether corruption is tolerated or can be successfully
prosecuted and reduced. That section also explained that norms favorable to
corruption are difficult to change. Kosovo should intensify efforts to build
the appropriate norms. This should focus particularly on young people and on
the business community. It can be understood especially when it focuses on
young people, as a component of a larger effort at “civic education.”

Before the 1999 conflict, civic education had but one
objective: love your country and be prepared to take arms in its defense. Much has
changed after the conflict, however, and the focus of civic education is no
exception. With the help of the new political landscape and the international
community, the content of civic education has morphed into healthy debate and
understanding about democratic processes and human rights.[237]
Although still in its infancy, civic education in Kosovo has made impressive
strides by changing the nature of the subject matter taught.

Current small scale initiatives within Kosovo are planting
the seeds for more widespread efforts at civic education in the future.
Successes have occurred as early as at the preschool level in new civic
activities, such as having preschoolers meet policemen and learning law
enforcement’s responsibilities in their community. These types of initiatives
are not altogether isolated and are excellent examples of how civic education’s
role should function at the academic level. These programs and new ones similar
to them should be encouraged and expanded upon.

Adolescents and young adults equipped with a very basic
foundation in civic education are intellectually capable of debating more
complex, public issues. Once given a platform to learn, these youth are able to
grasp the ideal relationship between a government and its populace: the government’s
role is to represent the best interests of the populace, and it is the
populace’s responsibility to hold the government accountable. An integral part
of this education should include information about the direct, negative effects
commonplace corruption has on their everyday lives. For instance, young adults
should be challenged to make the connection between the Minister of
Transportation’s embezzling and accepting of kickbacks and the 400 euro bill
their father received from the auto mechanic after running into a pothole on
the highway.

Kosovo’s youth are not the only hopeful examples of a more
mature civil ethic among Kosovar society. Within the business community,
Kosovo’s Chamber of Commerce has been instrumental in providing peer support to
companies who are having trouble with the Kosovar regulatory system. The
Chamber of Commerce, under new leadership headed by widely respected
businessman and public servant Besim Beqaj, plays its role in educating
companies about their rights under the relatively new Kosovar system. When
irregularities occur, the Chamber of Commerce has become a conduit through
which companies can voice their concerns and, when necessary, band together to
lobby against such irregularities. The Chamber of Commerce should be allowed to
continue to flourish, and other organizations that serve the same end for
various other interest groups should be encouraged as well.

The most developed mechanism for civic education in Kosovo
is Kosovo’s free press.Taking into
account that the many of Kosovo’s inhabitants are unemployed, various daily
newspapers are very widely read. Although in some respects flawed, the press
has done an excellent job at uncovering inequities and giving the public a
sense of what is and is not acceptable in terms of corrupt behavior.If political will could be more firmly
established, the press would make an excellent delivery mechanism to a
government sponsored civic education advertising program aimed at the general populous.

A final caveat: private individuals and organizations alike
need to be specific with corruption allegations. Accusations based upon mere
suspicion or distrust serve only to jade an ever weary public, as they may be
difficult to distinguish from more serious accusations and rarely result in a
police investigation. Specific allegations, however, with strong evidence in
their support, put pressure on politicians, police, and prosecutors to do their
job.

Rooting out public corruption is difficult in any society
and requires a sustained, patient effort, even when the four preconditions
identified in § IV. C. exist. Kosovo is no exception. It is important that
expectations about anti-corruption initiatives be realistic. This section
suggests what is possible in one year, three years, and ten years.

The Kosovar public currently views corruption as a major
reason for Kosovo’s lack of economic progress as a nation. This contributes to
a political environment that is increasingly charged and jumpy at the mention
of corruption. It would not take much for real political will to develop in
response to public perceptions. In the next year, it is possible that a group
of politicians or perhaps even an entire political party will take up the
anti-corruption cause in a serious way.

Fortunately, the laws are already in place to help support
such a movement. Anti-corruption legislation is similar to that of the United States.
In addition, an anti-corruption body has been legally formed and just awaits
the political will to fill positions in it with independent, competent
Kosovars.

In one year, it is conceivable that not only will political
will manifest from a broad public concern about corruption’s negative effects
on their society, but that it will then fuel the creation of an anti-corruption
body with some teeth.

Specifically, the Kosovo Anti-Corruption Agency is an
institution that needs to experience rapid growth. The first step has been
completed with the drafting of the statute, which lays the groundwork for an
agency that will aggressively monitor the activity of public officials. Simply
having a competent government body, such as this one, will provide a strong
deterrent against public officials who may be contemplating participating in
some sort of corrupt behavior. The Agency needs to exercise its powers to the
fullest extent. It needs not only to fulfill its duties in monitoring public
officials, but must also formulate a long-term anti-corruption plan and advise
the Assembly on the possible corruption ramifications of legislation that is
considered and passed. By identifying possible or likely avenues of corruption
early, the Agency and prosecutors will be better equipped to impede corrupt
activity.

Perhaps the most important achievement that can be made
within one year is the commencement of at least one major corruption
investigation. This investigation must be carried out by a competent prosecutor
who will follow the corruption wherever it takes him or her. In addition to any
convictions that may result from the investigation, there will be at least two
resulting positive effects. First, the commencement of a serious investigation
into public corruption will help to restore the public’s faith that the
government is taking action to curb corruption. Without some sort of activity
by the government, the public may fall into the perception that everyone is
corrupt and therefore there is no political will to combat it. Second, some
corrupt officials will essentially be scared straight. The risk/benefit
analysis that officials make prior to engaging in corrupt or illegal activity
will change. A serious investigation will increase the risk and deter some
officials from taking part.

Another result that can be easily accomplished within the
next year that very well may lead to numerous investigations is to follow up on
audits that discover financial inconsistencies. If an audit of a governmental
body finds that money may not be headed where it was supposed to,
anti-corruption authorities must then step in and make the appropriate
officials account for where the funds have gone. Doing so may unearth cases of
actual corruption, and at the very least it will help to achieve a more
efficient government.

It is not, however, realistic to expect that actual convictions
would result from anti-corruption investigations within one year. Instead, the
most that can be hoped for is that a prosecution would have commenced by filing
charges. It also is possible, though not desirable from the aspect of public
monitoring of the seriousness of any anti-corruption campaign, that one or more
serious investigations might be underway but could not yet be made public
without compromising them. Success in the first year may have to be judged
afterwards, in retrospect.

If a serious anti-corruption body can be properly staffed
and funded, then real headway can be made with serious investigations into the
misdeeds of the political higher-ups. As a naturally occurring cycle, these
investigations usually bring with them added public support and political will.
Within three years, it is realistic to have various ongoing investigations and
at least one high level conviction.

Within three years, it is a realistic goal to have at least
one high-level, visible conviction. By this time, there should be prosecutors
that are specially trained and focused upon conducting corruption
investigations. Investigative techniques will have become more sophisticated,
and the pool of confidential informants and cooperating witnesses will be
growing quickly. The conviction(s) will continue to create public confidence in
the government’s will to combat corruption.

The overarching goal is to have an institutionalized system
to fight corruption in place within three years. This means developing the
institutions that already exist to the point that they run efficiently, and
restoring public confidence in government. A byproduct of public confidence in
an honest government will be increased political participation that leads to a more
developed dialogue between voters and politicians. The perception that
corruption is a necessary and unavoidable aspect of governance should be
replaced with a perception amongst both the public and politicians that
corruption is a phenomenon that hurts all levels of society, and that those who
participate in it are criminals who will soon fall under the watchful eye of
the authorities.

Three years is an ample period for serious anti-corruption
investigations to ripen into public prosecutions and actual convictions. If no
high level convictions have occurred within three years then the citizens of
Kosovo and outsiders can be confident that the political will to root out
corruption in independent Kosovo is absent.

Although perhaps not to the extent of the world’s most
developed countries, in ten years Kosovo can realistically hope to have
effective, independent anti-corruption resources as a regular part of its
political system.

Ten years from now Kosovo could have a working system
whereby corruption is reported, investigated, and prosecuted. There should be
anti-corruption experts working both as prosecutors and in the Anti-Corruption
Agency. It is reasonable to expect that a 10 year period should see some
convictions as extensive as those in the U.S. ABSCAM, Silver Shovel, and
Greylord investigations. Such results would create the impression that other
investigations are ongoing. Anti-corruption activities should be integrated
with those of the rest of Europe and the
world. There should be less corruption to investigate as public officials will
have gotten the message that those who engage in illegal activities will be
brought before the law. While public corruption will never be entirely
eradicated, there is no reason to think that Kosovo cannot have one of the more
sophisticated and successful anti-corruption campaigns around. Once a couple of
key investigations and convictions have been made, a culture of anti-corruption
will perpetuate itself. Less corruption will lead to stronger political
institutions and vice versa.

Section IV.C. made the point that different types of
corruption may be more or less damaging, and that an anti-corruption initiative
in Kosovo should focus on high level bribery and embezzlement. That leaves open
the question, however, of where the focus should be in terms of various types
of contexts within which corruption can occur. Selecting targeting priorities
within these contexts should depend on the degree of suspicion that illegal conduct
is occurring, the likelihood that it can be uncovered and proven in court, and,
importantly, the public opprobrium that would attach to exposure. Any public
corruption campaign should be organized in large part to increase rather than
diminish public support for reducing corruption.

Three possibilities should be considered: drug trafficking,
human trafficking, and public contracting.

Drug trafficking is an attractive potential target because
significant criminal intelligence about drug networks and Kosovar participants
in them is potentially available from other countries’ police and intelligence
services. If those services are willing to provide some of the intelligence to
a Kosovo anti-corruption initiative, that would make the initial targeting of
Kosovar participants easier. Indeed, it may be that other police and
intelligence services have been waiting for the opportunity to prosecute some
Kosovar participants.

On the other hand, if the evidence shows that Kosovars are involved
in drug trafficking that involves mostly foreign sources and destinations, the
general population may not perceive the activities of the Kosovar defendants
are particularly injurious to Kosovo and might be persuaded by the defendants
and their supporters that the prosecutions are simply vendettas against Kosovar
Albanians. Moreover, drug trafficking is sophisticated and ruthless. The risk
of witness intimidation and assassinations would be high.

Human trafficking shares some of the characteristics of drug
trafficking but also differs from it in important ways. The quantity and
quality of criminal intelligence about human trafficking networks is likely to
be less than that related to drug trafficking networks because human trafficking
has only become a matter of large scale international concern recently, while
drug trafficking has been a concern for at least two decades. Human trafficking
might be a more attractive target for initial focus than drug trafficking
because human trafficking is more likely to be repugnant to most of the Kosovar
population. While many in Kosovo, as in the United States and elsewhere, view
drug use and distribution as a victimless crime, human trafficking manifestly
is not a victimless crime.

The best circumstance would be if the participation by
Kosovars in human trafficking results in the kidnapping of at least some
Kosovar citizens, male or female, to fulfill the sexual desires of foreigners.
It is not clear as of the writing of this report whether such Kosovar victims
of human trafficking exist. If the victims are foreign men or women brought
into Kosovo or moved through Kosovo, the public outrage about the participation
of Kosovars in such trafficking would be less, and there is the risk that
targeting them for prosecution would be perceived as a vendetta against Kosovo,
as with drug trafficking, although there surely would be a higher degree of
public opposition to any Kosovar participating in human trafficking as
contrasted with drug trafficking.

Targeting human trafficking, however, must not deteriorate
into occasional raids on houses of prostitution and prosecution of low-level
prostitutes or pimps. To be meaningful, targets must be those who run the
network.

This might seem to be the most obvious context to focus on,
because it takes place in Kosovo and all the participants are in Kosovo at
least at some points in time. Moreover, while physical threats to the safety of
informants, undercover agents, and cooperating witnesses surely exists,
participants in public contract corruption are less likely to be as depraved
and ruthless as those involved in high level drug or human trafficking.

There are some disadvantages of this focus, however. It is
far more likely that the average Kosovar would perceive certain types of
corruption and public contracting as simply a normal way of doing business.
Moreover, individual businesses and the business elite may perceive, upon
reflection, that they are better off in the short run with the status quo than
with high levels of controversy about business and government linkages in
corruption. Accordingly, corruption in public contracting may be harder to
investigate successfully, and the positive increment to public support
resulting from successful prosecutions might be less than prosecuting more
opprobrious forms of criminal activity.

It is commonplace for experienced public corruption
investigators in the United
States to focus their efforts initially on
midlevel participants in targeted activities. Once sufficient evidence has been
gathered to convict a midlevel person, that person can be confronted with the
evidence and threatened with a long jail term (“jamming up” the target) unless
that person agrees to cooperate in exposing higher level participants. That is
precisely what happened in the ABSCAM and Silver Shovel investigations, and
indeed, in aspects of Watergate. Accordingly, regardless of whether
anti-corruption investigators target drug smuggling, human trafficking, public
contracting, or something else, they must organize their efforts in terms of
the ultimate goal of convicting a ministerial level government official or a
businessman rather than a lower level person engaged in petty corruption, while
also recognizing that they must begin at a level between the two in order to
work their way up the chain of command in corrupt networks.

“COOLEY: No, no, no because here's the thing, if they get
[$75,000] this guy's home free, then he's in no hurry to work out somethin'.
They have to get that money. If they don't get ... it this thing today is
turned down, tomorrow this guy will work a deal with me.

“DELEO: Okay.

“COOLEY: If I get this thing denied today, it'll be done.

“DELEO: Okay.

“Cooley reiterated his position later when he met with DeLeo
again before the hearing took place:

“COOLEY: Here ... if he doesn't get that today he's got to
cut a deal.

“DELEO: (IA) was it served?

“COOLEY: It was served at my office, yesterday afternoon. My
guy's out of town, my guy's back in Seattle, I'm just gonna tell the judge that
I can't get my client I'm not gonna okay one nickel going out (IA) ... see
they've got to work this deal now.

“DELEO: (IA)

“COOLEY: If he denies it.

“DeLeo confirmed what disposition of the motion Cooley was
seeking from Shields at the conclusion of their conversation:

“DELEO: I'll be back (Inaudible)

“COOLEY: Alright.

“DELEO: (Inaudible) ... We want to stall it till next week.

“COOLEY: Fine that's all we need.

“DELEO: (IA)

“COOLEY: That's all we need.

“DeLeo proceeded to meet with Shields in his chambers, just
before Shields heard the Nichols motion. A brief exchange between Shields and DeLeo,
in which DeLeo echoed the strategy he and Cooley had just discussed, confirms
that Shields was on board with the plan to fix the case:

“DELEO: I'm going out of town next week. (IA) California
(IA) stall it 'till next week and the case will be settled.

“One of DeLeo's first remarks to Cooley about the prospect
of influencing Shields was:

No, he'll do whatever we want. [A]ll he's wan ... worried
about is this. That's what I'm saying and you know and you, you know how, what to
do.

“Cooley testified that when DeLeo told him "all he's
wan ... worried about is this," DeLeo had rubbed his fingers together in a
gesture Cooley took to mean "money". Later in that conversation, the
references to bribes became more explicit:

“DELEO: (IA) all you got to do is tell me what you want me
to give him.

“COOLEY: Alright you tell me what's fair Patty.

“DELEO: I don't know.

“COOLEY: Yeah.

“DELEO: I know. (IA) know all I want to do, all I want to do
is lock him up.

“COOLEY: There's big bucks involved in it.

“DELEO: (IA) You tell me what you want to do.

“COOLEY: There's big bucks involved.

“DELEO: You tell me what you wanna (IA) do.

“COOLEY: Well you tell me whatever is fair to start.

“DELEO: I don't care. It don't make any difference.

“COOLEY: Alright give me a normal number.

“DELEO: I have no idea.

“COOLEY: I've never done anything before in the civil area.

“DELEO: I have no idea.

“COOLEY: So numbers I, I don't care what the numbers are.
You know if it's worthwhile.

“DELEO: I don't know.

“COOLEY: If I, if I can walk in and look like a star.

“DELEO: He'll do it, he'll do it like this.

“COOLEY: Okay.

“DELEO: Okay. He'll do anything. You tell me what you want
me to give him.

“COOLEY: How about, how about 2500?

“DELEO: Fine.

“Again, Cooley testified that when DeLeo said, "[A]ll
you got to do is tell me what you want me to give him," he understood
DeLeo to mean how much money they were going to pay Shields.

“DeLeo later reiterated Shields' contentment to rule as
Cooley wished so long as he was paid in his later conversations with Cooley.
When DeLeo and Cooley met on August 19, 1988, just before Shields first heard
Cooley's motion for preliminary relief in the Nichols case, DeLeo told Cooley,
"Give me the money and I'll give it (IA)." [citing recording] Cooley
testified DeLeo had said "I'll give it to him," meaning "to
Shields." The first bribe of $2,500 then changed hands between Cooley and
DeLeo. Shortly thereafter, DeLeo informed Cooley that "[Shields] won't
take the money till it's granted." Several days later, when Cooley met
with DeLeo to discuss an impending, second hearing in the Nichols case, Cooley
asked DeLeo whether Shields had been happy with the first bribe:

“COOLEY: Alright, but I mean, with him, (IA) was he happy with
what I gave him before.

“COOLEY: Ok, as long as he's happy that's the you know
that's the main thing. (IA)

Cooley testified that in response to his question, DeLeo had
nodded his head. The question of money came up again as Cooley emphasized to
DeLeo that he wanted Shields to continue the forthcoming hearing so that the
case would remain in a favorable posture for settlement:

“COOLEY: (IA) You tell me, you know again, you know I know
he'll take some heat from the other side. If he can get me couple weeks date
Pat, we can probably get this whole thing done. In other words if he can get me
a couple weeks date.

“DELEO: (IA) Let's give him another two bits.

“COOLEY: Alright fine if that[']s fair with him ...

“Cooley understood DeLeo to be suggesting that he pay
Shields another $2,500. Cooley handed that amount to DeLeo at a subsequent
meeting on August 30, 1988. Again Cooley asked DeLeo whether Shields was happy.
DeLeo's response was inaudible on the tape, but Cooley testified that DeLeo had
responded affirmatively with a nod of the head. DeLeo confirmed Shields'
satisfaction with the money during a phone conversation he had with Cooley on
September 1, 1988:

“DELEO: I absolutely think it's no problem, because he was
like doing somersaults.

“COOLEY: Okay, great.

“DELEO: He goes oh, I thought it was all part of this ... I
says no, never part of the (IA).

“COOLEY: Good.

“DELEO: Okay? (IA)

“COOLEY: Oh, then you saw him a second time, then.

“DELEO: I actually don't think there's ever going to be a
problem.

“COOLEY: Okay.

“DELEO: But I said no, I jus' told ya, now I'll, I'll see
you at the end of this case.

“COOLEY: Okay.

“DELEO: I, I, told the other lawyer. I said I'll see you at
the end of the case and he's like doin' somersaults, (IA) I never expected to
see you again until the end of the case....

“Cooley confirmed that he understood these references were
to Shields and his satisfaction with the bribes that had been paid. Ultimately,
after the Nichols case was resolved, Cooley met once again with DeLeo and
sought his guidance as to how he should pay both defendants for their
assistance:

“DELEO: You got your cut?

“COOLEY: Yeah I can probably take mine out now I put the
check in there almost what, a week and a half ago so I'm sure the check is
cleared by now.

“DELEO: So how much do you wanna go?

“COOLEY: I mean you tell me Patty.

“DELEO: I don't care Bob.

“COOLEY: Tell me what, cause I don't want, I don't want the
other guy gettin angry either think we're cuttin' him out cause I mean if he
needs some more let me know.

“*24 DELEO: (IA)

“COOLEY: You tell me.

“DELEO: (IA) give him another twenty-five.

“COOLEY: I mean will that be enough, will he be uh ...

“DELEO: (IA) I, you know what, (IA) have to give anything.

“COOLEY: I mean you tell me, again I have to go, may have to
go back there again for something and he's the Chief Judge we don't [want] to
have a problem up there. (IA) we'll give him another 1,000 I mean that's not a
whole lot, that's not a little.

“DELEO: (IA)

“COOLEY: Is five thousand good for you?

“DELEO: Sure.

“COOLEY: I mean is that fair?

“DELEO: Yeah

“COOLEY: Ok, then why don't I see you tomorrow morning, I'll
give you call tomorrow morning and I'll met you tomorrow morning and I'll get
it to you tomorrow.

“Cooley testified that he gave $6,000 to DeLeo on the
following day.

“All of these exchanges supported the government's
allegation that Shields and DeLeo had induced Cooley to part with his money by
conveying the impression to Cooley that Shields would rule in whatever way
Cooley desired so long as bribes were tendered. Moreover, as the Court noted in
its pretrial opinion denying defendants' motion to dismiss the Hobbs Act
charges, the economic harm theory was not precluded by the fact that Cooley was
a government informant and therefore could not truly have feared economic harm
from the defendants.”[239]

“On February 2, 1980, Weisz, accompanied by Rosenberg,
drove to the Hilton Hotel at New York's KennedyAirport to meet with Amoroso and
Weinberg. Amoroso told Weisz that the wealthy Arabs were
pleased with the [Congressman Richard] Kelly transaction and, indicating that
they “need[ed] a few [more] of these guys in our corner,” asked Weisz if he had
“anybody else in mind at this particular time?” Weisz was
agreeable to bringing additional people to the Abscam operatives:

WEISZ: There's other ones, yes.

“AMOROSO: All
right. How about the same arrangement?

“WEISZ: I
don't see why not.

“AMOROSO:
Okay.

“WEISZ: Seems
satisfactory.

“····

“WEISZ: If you
wanna do exactly the same thing, I'll get you somebody else to do exactly the
same thing.

Weisz asked Weinberg to call
Ciuzio and was surprised, but unconcerned, that Amoroso intended to deliver
Congressman Kelly's $75,000 personally:

“AMOROSO: I
got fifty for you, fifty for Bill [Rosenberg],
and then we got fifty for Gino [Ciuzio].

“WEISZ: And
you're gonna ··· deal direct with ··· Kelly?

“AMOROSO:
Yeah.

“WEISZ: Ok ···
I see···· As long as he agrees ··· [t]hat's perfectly okay. I couldn't care one
way or the other.”[240]

Repeatedly the public officials talked mostly about the
legitimacy of the proposed projects, and had to be lured carefully into talking
about bribes. For example City Council President Schwartz said, “[I]f it isn’t
something outlandish, if it is something that should and can be handled, and I
can, I can’t think of anything that couldn’t be handled.”[241]

Evidence was collected through video recordings made of
meetings between the targets and undercover agents at a house in Washington, a yacht in Florida
and hotel rooms in Pennsylvania and New Jersey. In some
cases, the defendants were willing to discuss the bribe, more or less
explicitly:

“In discussing the political situation in Philadelphia, and
City Council in particular, Johanson boasted that of the 17 councilmen, he and
Schwartz was each a “very bright fella”, and “after that there ain't a brain in
the closet.” He spoke of his and Schwartz' importance, and stated that
Schwartz, Jannotti and he “run the City Council.” Wald then asked about
Jannotti:

In the cases of other defendants, the video recording
constituted essential evidence because the defendants could be seen taking
bribe money from undercover agents, but refused to discuss it, or to discuss it
only indirectly. Councilman Jannotti was especially coy:

“Wald
then took an envelope from his briefcase (containing $10,000 cash), handed it
to Jannotti, and asked if “that amount is sufficient.” Jannotti took the
envelope, answering, ‘We've discussed it.’

“Shortly thereafter
as seen on the videotape, Wald opened his briefcase and, without discussion of
the amount, handed Schwartz an envelope (containing $30,000 cash), which
Schwartz placed in his jacket without counting. The nature of the commitment
Schwartz made was reiterated:

“WALD: The legislative problems we've taken care
of?

“CRIDEN: No problem.

“WALD: Okay, that I can, that I, that I got assurance on.

“SCHWARTZ: Right.

“CRIDEN: You have, you have no problem.

“WALD: Okay, the other things can be done through attorneys, but the
legislative problems don't exist anymore?

One video recording showed Congressman Kelly stuffing cash
in his suit jacket pockets, after he tried to persuade the undercover agents to
bribe him through an intermediary:

“Kelly agreed to assist the Arabs, and, as recorded on the
video tape, indicated that Amoroso's arrangement with Ciuzio was fine:

“All of this
stuff that you've been talking about ··· I don't know anything about that,
I'm not involved with it··· Gino and these guys are my friend [s] ··· what
you said makes a lot of sense to me ··· I'm gonna stick with ya ··· and you
can put me out there on the hill, and when you come back in the morning, I'll
still be there···· So this ··· will be helpful to me and ··· maybe ··· down
the road sometime, you can do me a favor. But in the meantime, whatever
these guys are doing is all right, but I got no part in that···· In other
words, ··· your arrangement with these people is ··· all fine···· [Y]ou have my
assurance that what you have told me here, sounds like a good thing and ··· I
will ··· stick by these people.

After Amoroso received a call
from Assistant United States Attorney Jacobs who was monitoring the meeting and
who thought Kelly was being “cute,” and after Kelly conferred with Ciuzio, Amoroso sought to clarify Kelly's
position. Kelly made it clear that he wanted the money given to Ciuzio:

KELLY: [Y]ou and I gotta ···
learn to talk to each other.

“AMOROSO: Well
I know ···

“KELLY:
[D]on't stumble around, jump in there ···

“AMOROSO: Jump
in there and give it to you?

“KELLY: Sure.

“AMOROSO: Ok.
I was under the impression ··· when this thing was set up ··· that I was gonna
give you something ··· tonight ···

“However, when Amoroso
indicated that all of the money was intended to go to Kelly, and that Ciuzio would be
separately compensated, Kelly was confused:

“I understood
that what you were talking about was ··· all there was as far as Tony [sic,
should be Ciuzio] was concerned and so as far as I'm concerned, he takes
that···· [B]ut I see I didn't know ··· about this other arrangement···· It's
··· all right but I didn't know about that. So lets talk about it some.

“Amoroso explained that he
thought that giving the money directly to Kelly would avoid witnesses, thus
protecting him. Kelly agreed:

“AMOROSO: I
thought that the best way of doing it was ··· a one on one between you and I.
Now to me that sounds like ··· if you're looking for security ··· the best way
of doing it.

“KELLY: I
think so too

“Amoroso then gave Kelly
$25,000 in cash and Kelly stuffed the money into the pockets of his suit.”[245]

Although Weinberg and the undercover agents consistently
insisted on dealing with the public officials directly, in one case, involving
Congressman Jenrette, the best they could do was to pass money through an
intermediary and then get telephone confirmation from Jenrette that he received
it.[246]
Earlier, Jenrette said, “Don’t get me wrong . . . I got larceny in my blood,”[247]
after he declined, for the time being, an offer of a $50,000 advance payment
for introducing a private immigration bill for the sheik.

·Adopt a freedom of information law that ensures
public access to government information, government decision-making, except
when there is a clear reason why this information should not be released

·Financial disclosure

·Adopt a financial disclosure law. Public employees
would be required to disclose on a yearly basis all of their financial
interests. This would apply to managers and directors of government run
utilities and government funded utilities

·Conduct an audit of government owned enterprises to
ensure that they are being run properly.

·Procurement law

·Divide the regulatory function from the operational
function; the person or organization responsible for enforcing procurement
rules should not be engaging in any procurement activities themselves.

·Tenders

·Selection committees at the operational level, i.e.
the committees that are actually selecting the winning tender, should be staffed
by government representatives and independent NGO observers, to open up the
process and ensure that the process is being conducted legitimately.

·Independent regulatory agencies

·Should include some observers from NGOs and civil
society, to see that regulations are being properly enforced.

·Transparency

·Provide public clarity about who within Central
government is responsible for what;

·Dissemination of information on the organization and
operations of Central government to the public so they know whom to address
when they have a problem or issue.

·Lack of accountability

·Creation of an independent Auditor General and creation
of departments on anti-corruption within each ministry to police ministries.
The Auditor General will have the authority to police the ministries and the
government and report directly to the Parliament. Ministries and agencies
Central government should be held more responsible to report to an Auditor
General or in the case of procurement to a procurement regulator.

·Conduct of members of Parliament – MPs must be
ethical and transparent in all their actions.

·Code of conduct for MPs, with enforcement power

·Establish an Ethics Committee to ensure enforcement

·Require financial declarations by MPs and include
penalties for providing false information on the financial declaration

·Conflict of interest

·Create conflict of interest statutes

·Establish a gift ban – public officials should not
be allowed to accept gifts or they should at least be required to disclose
this information to the public and let the public decide

·Corruption of public companies and public officials

·Bribery statutes and a code of conduct, enforceable for
all people that are associated with agencies that take public money; if
convicted of an act of bribery, that person would never again be allowed to
work in a public agency

·Parliamentary oversight UNMIK and the Executive
Branch

·Question time- MPs can ask questions of the
government;

·Auditing Committee with the authority to question
the executive branch agencies regarding expenditures

·Whistle-blower statutes that protect those people who
expose corruption and ensure that they do not lose their jobs

·Sunset legislation – every two to three years,
programs funded by the government should undergo a performance evaluation to
ensure that these programs are effective and that money is being well spent
through these programs.

·Funding of political parties

·Create an independent agency to review the actions
of parties and candidates

·Business practices – contracts and procurement

·Assembly should have clear guidelines regarding
contracts and procurement; government oversight of this process

·False documents – building permits, IDs, vehicle
registrations

·Incorporate into the criminal code; criminal
sanctions, fines and penalties; ensure strict enforcement and adherence to
these regulations

Corruption increases costs for enterprises, and at the same
time decreases profits, this decrease in profits decreases the motivation to
continue in business and the businessman and may eventually decrease the level
of staff or close the enterprise completely.

Problems

Solutions

·Delays in receiving permits

·Relations with the tax officials and the corruption
involved

·Corruption in the tendering process

·Lack of urban strategic plan, which results in ambiguities
regarding property and awarding of permits; those seeking permits usually try
to resolve the ambiguities in a corrupt manner.

·Privatization process may be accompanied by a high
level of corruption

·Lack of effective governance at the municipal level

·Impose transparent regulations with regard to giving
of permits, establishing clearly defined time frames, respecting the
established time frames, and providing the reason when a permit is denied.

·The business community, i.e. the private sector,
needs to point out to government agencies cases of corruption ; businesses
that refuse be included in this practice, may pay a high price by being
denied access to certain markets

·Raise the level of information and quality of
corporate governance enterprises, by insisting on the development of
management functions within these enterprises.

·Clearly define the concepts of partnership and
conflict of interest.

·Ensure that property rights and the rights of
shareholders, especially minority shareholders i.e. those who have fewer
shares, are respected.

[1]
Operation Kosovo is a volunteer project of faculty, students, and staff at Chicago-Kent
College of Law, directed by Henry H. Perritt, Jr., Professor of Law and former
Dean. Operation Kosovo has been involved in Kosovo since August, 1998,
initially providing refugee relief, and then, after the NATO bombing campaign,
providing technical assistance for economic development, political party
development, privatization, rule of law, and improved legal education.

[2]
Professor Perritt edited this report. The project was directed by Jeffrey R.
LaMirand. Frank Bieszczat and Lisa Atkins wrote major sections. Caleb Fox,
Carrie Weinland, Teymour ElTahry and Chad Mair provided useful contributions.
FBI Special Agents Patrick Murphy and Travis Carlisle, former Chicago Police
Officer Roger Clark, two assistant U.S. Attorneys, who preferred to remain
anonymous, and D.C. Attorney Phil Fox provided helpful background information
on best practices for anti-corruption investigations in the United States.
Several activists, businessmen and public officials in Kosovo reviewed a draft
of the report and made helpful suggestions.

[46] See
April Mara Major, Norm Origin and Development in Cyberspace: Models of
Cybernorm Evolution, 78 Wash.U.L.Q. 59, 62-63 (2000) (explaining social norms
and citing references).

[47] In the
Italian legal system, the most important initiator of criminal investigations
was not a public prosecutor, as in the United States or Britain, but a
specialized judicial official called an “investigating magistrate.” John D.
Jackson, The Effect of Legal Culture and
Proof in Decisions to Prosecute, 3 Law, Probability & Risk 109, 127
(2004).

[79]United States
v. Christopher, 1 Fed.Appx. 533 (7th Cir. 2001) (describing cooperation in
affirming district court sentence of Christopher for 39 months based in part on
his commission of other crimes after his plea agreement).

[83] See United States
v. Blassingame, 197 F.3d 271, 276 (7th Cir. 1999) (affirming conviction of
Metropolitan Water Commission member Thomas S. Fuller and his bagman, James W.
Blassingame, describing bribe of deceased Water Commission member Gardner)

[108]
The Inspector General of the Justice Department recently issued a report on the
FBI’s compliance with Justice Department guidelines on the use of confidential
informants and undercover agents, and on the use of body wires.
http://www.usdoj.gov/oig/special/0509/.

[113]
An informal, short-term investigation by coauthor LaMirand in early June, 2006,
however, suggests that such bribery is not common with respect to the kiosk
prohibition. See [LaMirand essay on Operation Kosovo Web site].

[243]United States
v. Jannotti, 673 F.2d 578, 589 (3d Cir. 1982). Jannotti was the majority leader
of the Philadelphia City Council. Wald and Haridopolos were undercover FBI
agents. Criden was a Philadelphia
attorney who functioned as an intermediary. He was convicted along with
Jannotti.

[245]
United States v. Kelly, 707 F.2d 1460, 1466-1467 (D.C.Cir. 1983) (reversing
district court’s disapproval of ABSCAM investigative techniques as entrapment
and reinstating conviction of Congressman Kelly); see also United States v.
Weisz, 718 F.2d 413, 430-431 (D.C.Cir. 1983)(denying motion to exclude Kelly “money stuffing” scene from evidence
because of likelihood it would inflame jury against co-defendant). Weisz was
convicted of arranging meetings between undercover agents and congressmen for
the purpose of bribing them.